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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GITONAS AND OTHERS v. GREECE - 18747/91;19376/92;19379/92;... [1997] ECHR 35 (1 July 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/35.html
Cite as: [1998] 26 EHRR 691, (1998) 26 EHRR 691, [1997] ECHR 35, 26 EHRR 691
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In the case of Gitonas and Others v. Greece (1),
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 Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Mr N. Valticos,
Mr R. Pekkanen,
Mr P. Kuris,
Mr J. Casadevall,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 22 March and 23 June 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case originated in a decision to join cases
68/1996/687/877-879, 17/1997/801/1004 and 23/1997/807/1010. In each
individual case number, the first number is that case's position on the
list of cases referred to the Court in the relevant year
(second number). The third number indicates that case's position on
the list of cases referred to the Court since its creation and the
last number or numbers indicate its position on the list of the
corresponding originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court as three separate cases
(Gitonas and Others v. Greece, Kavaratzis v. Greece and
Giakoumatos v. Greece) by the European Commission of Human Rights
("the Commission") on 28 May 1996 and 22 and 27 January 1997, within
the three-month period laid down by Article 32 para. 1 and Article 47
of the Convention (art. 32-1, art. 47). It originated in
five applications (nos. 18747/91, 19376/92, 19379/92, 28208/95 and
27755/95) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by five Greek nationals,
Mr Konstantinos Gitonas, Mr Dimitrios Paleothodoros,
Mr Nicolaos Sifounakis, Mr Ioannis Kavaratzis and
Mr Gerassimos Giakoumatos on 12 June 1991, 22 November 1991 and
16 and 28 May 1995.
The Commission's requests 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 requests was to obtain a decision as to whether the facts
of the cases disclosed a breach by the respondent State of its
obligations under Article 3 of Protocol No. 1 (P1-3).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyers who would
represent them (Rule 30).
3. The Chamber to be constituted in the case of Gitonas and Others
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. 4 (b)). On
10 June 1996, in the presence of the Registrar, the President drew by
lot the names of the other seven members, namely Mr L.-E. Pettiti,
Mr C. Russo, Mr A. Spielmann, Mr R. Pekkanen, Mr L. Wildhaber,
Mr P. Kuris and Mr J. Casadevall, (Article 43 in fine of the Convention
and Rule 21 para. 5) (art. 43). Subsequently Mr Thór Vilhjálmsson,
substitute judge, replaced Mr Wildhaber, who was unable to take part
in the further consideration of the case (Rules 22 para. 1 and
24 para. 1). On 29 January 1997 the President decided that, in the
interests of the proper administration of justice, the cases of
Kavaratzis and Giakoumatos should be considered by the Chamber already
constituted to hear the case of Gitonas and Others (Rule 21 para. 7).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Greek Government
("the Government"), the applicants' lawyers and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1
and 38). Pursuant to the order made in consequence, the Registrar
received on 17 and 20 January 1997 respectively the applicants' and the
Government's memorials in the case of Gitonas and Others, and on 19,
20 and 24 February the Government's and the applicants' memorials in
the cases of Kavaratzis and Giakoumatos.
5. On 19 March 1997 the Chamber decided to join the three cases
(Rule 37 para. 3). In accordance with the President's decision, the
hearing took place in public in the Human Rights Building, Strasbourg,
on 19 March 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Kanellopoulos, Legal Assistant,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Adviser;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for four of the applicants (Mr Gitonas, Mr Paleothodoros,
Mr Sifounakis and Mr Giakoumatos)
Mr C. Mavrias, university professor, Counsel;
(d) for the fifth applicant (Mr Kavaratzis)
Mr G. Theofanous, of the Athens Bar, Counsel.
The Court heard addresses by Mr Loucaides, Mr Mavrias,
Mr Theofanous and Mr Kanellopoulos.
AS TO THE FACTS
I. Circumstances of the case
A. The case of Mr Gitonas
6. On 18 November 1986 Mr Gitonas, then an employee of the
Investment Bank (Trapeza Ependisseon), was seconded to the post of
Deputy Head (Anaplirotis Genikos Diefthindis) of the Prime Minister's
private office. He occupied that post for a period of approximately
thirty months until 24 May 1989, when his secondment ended.
7. In the general election of 8 April 1990 the applicant stood as
a candidate for the Socialist Party (PA.SO.K) in the
second Athens constituency. As he obtained more than the required
minimum number of votes for election, the
Athens Court of First Instance (Polymeles protodikio) declared in a
decision of 17 April 1990 that he had been elected.
8. On 26 and 27 April and 2 May 1990 three members of the
constituency's electorate lodged an application with the
Special Supreme Court (Anotato Idiko Dikastirio) for an order annulling
Mr Gitonas's election. They relied on Article 56 para. 3 of the
Constitution (see paragraph 29 below) and maintained, inter alia, that
the applicant's election was a nullity as, before the election, he had
held the post of Deputy Head of the Prime Minister's private office,
a ground for disqualification from standing for election under that
Article.
9. In the proceedings the applicant argued that as an employee of
the Investment Bank, a private-law entity, he could not be considered
a civil servant and he pointed out that he had become deputy head of
the Prime Minister's private office by secondment.
10. The Special Supreme Court considered the three applications
together and gave its judgment (no. 16/1991) by nine votes to two on
23 January 1991. It annulled Mr Gitonas's election on the following
grounds:
"Under [Article 56 para. 3], as is apparent both from its wording
(the disqualification applies in `any' constituency) and from its
purpose (to deter civil servants ... from using their posts to
prepare for a political career, and at the same time to ensure
that civil servants are politically neutral in the performance
of their duties as required by the Constitution and by statute),
the disqualification covers the whole geographical area in which
those duties were performed ..., so that a civil servant who has
general responsibility throughout Greece may not become an
elected member of parliament in any constituency. The bar
applies in all cases where the post has been occupied for more
than three months during the three years preceding the election
even if, in the interval between the post being taken up and the
election, another general election took place in which the person
concerned stood as a candidate ...
The aforementioned constitutional provision means that the bar
applies irrespective of the lawfulness of the administrative act
whereby the post was filled ...
The provision applies to salaried civil servants appointed to
established posts expressly created by law and governed
exclusively by public-law rules; included within that category
are dismissable civil servants in temporary posts within the
meaning of Article 103 para. 5 of the Constitution ...
Law no. 1299/1982 on `the organisation of the Prime Minister's
private office' established an independent public service to
assist and directly serve the Prime Minister in the performance
of his duties. To this political private office of the
Prime Minister ... were subsequently added - by decision of the
Prime Minister taken under section 12 (b) of Law no. 1299/1982 -
the special office of the deputy head responsible for
supervising and implementing the decisions of the
public government bodies and of the Prime Minister, and a
category A post of Deputy Director-General. Generally speaking,
the ordinary rules do not apply to recruitment to posts in the
Prime Minister's political private office, which are filled,
without any competition being held, either by appointment or
secondment from the civil service or a public-law or
public-sector entity, or by assignment of duties which the person
concerned performs concurrently ... with those of his usual
occupation, as determined by the Prime Minister, in a decision
published in the Official Gazette (section 6). Under
section 6 (1), persons seconded to the political private office
of the Prime Minister must elect whether to receive their entire
remuneration of all kinds from their permanent post or from the
post to which they have been seconded ... It is apparent from
the aforementioned provisions that the post of Deputy Head of the
Prime Minister's political private office ... is a remunerated
post occupied by a dismissable civil servant within the meaning
of Article 103 para. 5 of the Constitution, with general and
decision-making responsibility for the entire country, and as
such is covered by Article 56 para. 3.
... The documents in the case file show that [the applicant] was
seconded from the Investment Bank to the post of Deputy Head of
the Prime Minister's political private office by
decision no. Y311/1986, of the then Prime Minister, published in
the Official Gazette of 18 November 1986, and served in that post
continuously until 24 May 1989, when his secondment was ended by
a similar decision of the Prime Minister ... By a written
declaration of 18 November 1986 [the applicant] elected to
receive the remuneration attaching to his permanent post.
Consequently, as he occupied a remunerated post in category A,
with nationwide responsibility, for more than three months during
the three years preceding the general election of 8 April 1990,
he was barred from standing as a candidate or being elected as
a member of parliament in that election even if, in the interval
between his taking up that post and the latest election, another
election had been held in which [the applicant] had stood."
In a dissenting opinion two members of the Special Supreme Court
took the view that section 12 (b) of Law no. 1299/1982 did not
authorise the creation of a post of Deputy Director-General and that
the applicant had never acquired the status of salaried civil servant;
even supposing that the Investment Bank belonged to the public sector
and that the post had been created under the provisions of
Law no. 1299/1982, the applicant's secondment had been temporary, which
meant that he had retained his former status as an employee of the
bank, which continued to pay his salary.
B. The case of Mr Paleothodoros
11. On 10 November 1987 Mr Paleothodoros was appointed
Director-General of Greece's second television channel
(Elliniki Tileorassi 2, "ET2") by a resolution of the board of
governors of the Greek Broadcasting Company (ERT-AE), a public company.
He occupied that post for approximately a year, until 23 November 1988.
12. In the election of 8 April 1990 the applicant stood as a
candidate for the electoral coalition "Zante Initiative for Progress,
Development and Simple Proportional Representation"
(Zakinthini Protovoulia gia proodo - anaptixi - apli analogiki) in the
Zante constituency. As he obtained more than the required
minimum number of votes for election, the Zante Court of First Instance
declared, in a decision of 11 April 1990, that he had been elected.
13. On 25 April 1990 a member of the constituency's electorate,
relying on Article 56 para. 3 of the Constitution (see paragraph 29
below), lodged an application with the Special Supreme Court for an
order annulling Mr Paleothodoros's election on the ground that during
the period preceding the election Mr Paleothodoros had occupied the
post of Director-General of ET2.
14. The Special Supreme Court, by six votes to five, annulled the
election in a judgment (no. 41/1991) of 29 May 1991 in these terms:
"...
The disqualification [from standing for election] also applies
where, in the interval between the disqualifying post being taken
up and the relevant election, another election took place in
which the person concerned stood as a candidate. The possibility
that a civil servant will use his post to prepare for his
political career does in fact exist in this case too, as the
effects of such preparations are not limited to the election
immediately following the taking up of the post but may extend
to subsequent elections; consequently, it has to be accepted that
the civil servant continues to be disqualified under the
Constitution, if the election takes place within three years as
specified in the Constitution.
A public undertaking is an undertaking which under the law ...
exists to promote the general interest, in the form of a
legal entity over which the State exerts a decisive influence and
which operates according to economic criteria, not by speculating
... but by making profits that will enable it to achieve its
fundamental objectives ...
Section 1 of Law no. 1730/1987 established a private-law entity
in the form of a company called 'Greek Radio-Television'...
Section 1 (3) provides that ERT-AE is a public undertaking
belonging to the public sector (Law no. 1256/1982); it is
controlled and supervised by the State. By section 2 (1) of the
aforementioned Law, the objects of ERT-AE are to organise,
operate and develop radio and television broadcasting, and
contribute to informing, educating and entertaining the
Greek people. That provision also lays down that ERT-AE is not
a profit-seeking entity ...
The [ERT-AE's] main departments set out and apply, for the areas
within their responsibility, the basic principles laid down by
the board of governors and are financially independent ... The
board of governors appoints a director-general to head each
department (section 3). It follows that a director-general -
appointed by the board of governors and given the task of
applying in the area for which he is responsible the basic
principles laid down by the board, to whose supervision he is
moreover subject - is the employee of a public undertaking within
the meaning of Article 56 para. 3 of the Constitution; because
of that position ..., he is liable to the disqualification
referred to in that Article.
...
It is apparent from the aforementioned provisions, and in
particular those providing that ET1 and ET2 enjoy independence
in programme scheduling, that ... the director-general
participates in the choice or may influence the content of
television programmes, and the programmes ... are broadcast
throughout Greece and can be received in all areas of the
country. In the course of his duties a director-general may,
through his role in determining television programme scheduling,
have an advantage over other Greek citizens in preparing for a
political career.
... Mr Paleothodoros was appointed as Director-General of ET2 by
the ERT-AE's board of governors and remained in that position
from 10 November 1987 to 23 November 1988 ... In the light of
the foregoing, [the applicant] was a member of staff of a
public entity for a period of more than three months during the
three years preceding the election; as his authority was by its
nature general, he is disqualified from standing for election
under Article 56 para. 3 of the Constitution ..."
In a dissenting opinion five members of the Special Supreme Court
expressed the view that the responsibilities of the directors-general
of ET1 and ET2 were not such as to create a link between the head of
a department and a particular constituency. The mere fact that the
television channel's credits were broadcast in a particular
constituency did not amount to performing official duties in that
constituency.
C. The case of Mr Sifounakis
15. On 25 February 1987 Mr Sifounakis was appointed Director-General
of the Greek Broadcasting Company (ERT) and on 10 November 1987
Director-General of its first television channel (ET1). The applicant
occupied that post until 8 July 1988.
16. In the general election of 8 April 1990 the applicant stood as
a candidate for the Socialist Party (PA.SO.K) in the Lesbos
constituency. As he obtained more than the required minimum number of
votes for election, the Lesbos Court of First Instance declared in a
decision of 12 April 1990 that he had been elected.
17. On 25 April 1990 a candidate from the same party in the same
constituency lodged an application with the Special Supreme Court for
an order annulling Mr Sifounakis's election and a declaration that he
himself, as first substitute member for Lesbos, was the member of
parliament. In support of his application he relied on Article 56
para. 3 of the Constitution (see paragraph 29 below), maintaining in
particular that the applicant's election was a nullity as, before the
election, the applicant had held the post of Director-General of ERT
and ET1 and was consequently barred from standing as a candidate.
18. In a judgment (no. 40/1991) of 29 May 1991 the
Special Supreme Court annulled Mr Sifounakis's election for the same
reasons as it gave in Mr Paleothodoros's case. It found that ERT, a
company wholly owned by the State but administratively and financially
independent and operating in the public interest according to the rules
governing the private economy (Law no. 230/1975), had merged with the
ERT-AE by virtue of Law no. 1730/1987.
D. The case of Mr Kavaratzis
19. From 23 May 1990 to 13 September 1993 Mr Kavaratzis occupied the
post of First Deputy Director of the Social Security Fund
(Idryma Koinonikon Asfalisseon - "IKA").
20. In the general election of 10 October 1993 he stood as a
candidate for the "Nea Dimokratia" Party in the Evros constituency.
As he obtained more than the required minimum number of votes for
election, the Alexandroupolis Court of First Instance declared in a
decision no. 126/1993 that he had been elected.
21. On 2 November 1993 another candidate for that constituency from
the same party lodged an application with the Special Supreme Court for
an order annulling Mr Kavaratzis's election and for a declaration that
he, as first substitute candidate for the Evros constituency, had been
elected a member of parliament. He relied on Article 56 para. 3 of the
Constitution (see paragraph 29 below) and maintained in particular that
Mr Kavaratzis's election was a nullity as, before the election, he had
held the post of First Deputy Director of the IKA.
22. On 22 March 1995 the Special Supreme Court annulled (by six votes
to five) his election on the following grounds (judgment no. 10/1995):
"...
Under this Court's case-law: (1) the governor of a
public-law company or public undertaking - who, by virtue of
Article 56 para. 1 of the Constitution, cannot be elected as a
member of parliament if he has not resigned before becoming a
candidate, but who is not disqualified under paragraph 3 of that
Article - is the sole organ ... running that entity or
undertaking, in other words having the exclusive right to decide
... questions relating to its management
(see judgment no. 46/1990 of the Special Supreme Court).
(2) What matters for the purposes of determining whether in law
an organ is a `governor' is not merely that the term `governor'
is used in the law or the articles of association, but also the
powers which the organ is given by those provisions
(see judgments nos. 46/1990, and 4 and 5/1991 of the
Special Supreme Court). (3) Persons classified by the law as
governors of public-law entities but who, by virtue of the
provisions governing their occupational status, are nevertheless
subordinate to the entity are subject to the disqualification
provided for in paragraph 3 of Article 56 of the Constitution
(see judgments nos. 4 and 5/1991 of the Special Supreme Court).
The Social Security Fund is managed by its governor and a board
of directors. The governor is the highest-ranking
administrative organ of the IKA; he [is empowered] to decide any
question not expressly reserved by law to the board of directors,
to act as the head of all the Fund's departments and to supervise
them and review their actions, to take all appropriate measures,
to recruit staff and take disciplinary action, to represent the
Fund in court and other proceedings, to chair the board of
directors; more generally, he is the highest-ranking
administrative organ of the Fund; that organ is not subordinate
to any other organ of the entity and manages the IKA jointly with
the board of directors (see judgments nos. 4 and 5/1991 of the
Special Supreme Court).
The post of First Deputy Director of the IKA was created by
Royal Decree no. 11 of 15 May 1957, and that of
Second Deputy Director by section 15 of Law no. 1573/1985.
Neither organ, which the aforementioned provisions ... classify
as deputy director, is a governor of the IKA so as to be subject
to disqualification from election under Article 56 of the
Constitution ... The fact that the deputy director acts as the
governor's replacement is not sufficient for him to be ascribed
governor status, especially as by law, and in particular
section 15 (2) of Law no. 1573/1985, it is the governor who
appoints one of the deputy directors to act as his replacement
and as that delegation [of powers] ... does not alter the nature
of that organ even during periods when the replacement is
effective ...
In the instant case, during the period in issue, the governor of
the IKA, by decisions ..., delegated to the [applicant] - the
first deputy director - certain powers concerning questions
within the remit of the IKA's departments, but excluding matters
relating to `the development of the Fund's general strategy'.
By a decision of 23 September 1991 the governor of the IKA
appointed the [applicant] to act as his replacement for the
period from 1 October to 31 March of each year. The first deputy
director is appointed for three years and takes part in
deliberations of the board of directors in a consultative
capacity. It is apparent from the foregoing that, although the
first deputy director of the IKA is not subject to the
Civil Service Code ..., his relationship with the IKA is that of
employee and more particularly of a dismissable salaried member
of staff (Article 103 paras. 5 and 6 of the Constitution) of that
public-law entity; consequently, he is subject to the
disqualification from election provided for in Article 56 para. 3
...
...
The first deputy director of the IKA is a member of staff with
nationwide responsibilities and for that reason he cannot be
elected as a member of parliament in any constituency.
..."
23. In a dissenting opinion five members of the Special Supreme Court
took the view that, like the governor, the deputy directors were the
highest-ranking organs of the IKA, and not members of its staff, for
five reasons: (a) a distinction was drawn in the IKA's articles of
association (Article 2) between the "management", which included the
board of directors, the governors and the deputy directors, and the
"departments", to which the IKA's "members of staff" were attached;
(b) the deputy directors were excluded from the provisions of the
royal decree ... "on the application of the Civil Servants Code to the
IKA's members of staff" by Article 2 of that Code; (c) deputy directors
were not subject to disciplinary measures, whereas being so subject was
a decisive factor for classification as a civil servant or as a member
of staff of a public-law entity; (d) deputy directors were not
subordinate to the governor in the exercise of the powers he had
delegated them, which they would necessarily have been if they were
civil servants; and (e) they had a right to vote when chairing meetings
of the IKA's board of directors as the governor's replacement.
E. The case of Mr Giakoumatos
24. From 11 September 1991 to 13 September 1993 Mr Giakoumatos
occupied the post of Second Deputy Director of the
Social Security Fund.
25. In the general election of 10 October 1993 the applicant stood
as a candidate for the "Nea Dimokratia" Party in the
second Athens constituency. As he obtained more than the required
minimum number of votes for election, the
Athens Court of First Instance declared in a decision no. 3131/1993
that he had been elected.
26. On 2 November 1993 another candidate for that constituency from
the same party lodged an application with the Special Supreme Court for
an order annulling Mr Giakoumatos's election and for a declaration that
he, as first substitute candidate for the second Athens constituency,
had been elected a member of parliament. He relied on Article 56
para. 3 of the Constitution (see paragraph 29 below) and maintained in
particular that the applicant's election was a nullity as, before the
election, he had held the post of Second Deputy Director of the IKA.
27. On 22 March 1995 the Special Supreme Court annulled (by six votes
to five) Mr Giakoumatos's election on the following grounds
(judgment no. 9/1995):
"...
Under this Court's case-law: (1) the governor of a
public-law company or public undertaking - who, by virtue of
Article 56 para. 1 of the Constitution, cannot be elected as a
member of parliament if he has not resigned before becoming a
candidate, but who is not disqualified under paragraph 3 of that
Article - is the sole organ ... running that entity or
undertaking, in other words having the exclusive right to decide
... questions relating to its management
(see judgment no. 46/1990 of the Special Supreme Court).
(2) What matters for the purposes of determining whether in law
an organ is a `governor' is not merely that the term `governor'
is used in the law or the articles of association, but also the
powers which the organ is given by those provisions
(see judgments nos. 46/1990, and 4 and 5/1991 of the
Special Supreme Court). (3) Persons classified by the law as
governors of public-law entities but who, by virtue of the
provisions governing their occupational status, are nevertheless
subordinate to the entity are subject to the disqualification
provided for in paragraph 3 of Article 56 of the Constitution
(see judgments nos. 4 and 5/1991 of the Special Supreme Court).
The Social Security Fund is managed by its governor and a board
of directors. The governor is the highest-ranking
administrative organ of the IKA; he [is empowered] to decide any
question not expressly reserved by law to the board of directors,
to act as the head of all the Fund's departments and to supervise
them and review their actions, to take all appropriate measures,
to recruit staff and take disciplinary action, to represent the
Fund in court and other proceedings, to chair the board of
directors; more generally, he is the highest-ranking
administrative organ of the Fund; that organ is not subordinate
to any other organ of the entity and manages the IKA jointly with
the board of directors (see judgments nos. 4 and 5/1991 of the
Special Supreme Court).
The post of First Deputy Director of the IKA was created by
Royal Decree no. 11 of 15 May 1957, and that of
Second Deputy Director by section 15 of Law no. 1573/1985.
Neither organ, which the aforementioned provisions ... classify
as deputy director, is a governor of the IKA so as to be subject
to disqualification from election under Article 56 of the
Constitution ... The fact that the deputy director acts as the
governor's replacement is not sufficient for him to be ascribed
governor status, especially as by law, and in particular
section 15 (2) of Law no. 1573/1985, it is the governor who
appoints one of the deputy directors to act as his replacement
and as that delegation [of powers] ... does not alter the nature
of that organ even during periods when the replacement is
effective ...
In the instant case, during the period in issue, the governor of
the IKA, by decision ..., delegated to the [applicant] - the
second deputy director - certain powers concerning questions
within the remit of the IKA's departments, but excluding matters
relating to `the development of the Fund's general strategy'.
By the same decision the governor of the IKA appointed the
[applicant] to act as his replacement for the period from 1 April
to 30 September of each year. The second deputy director is
appointed for three years and takes part in deliberations of the
board of directors in a consultative capacity. It is apparent
from the foregoing that, although the second deputy director of
the IKA is not subject to the Civil Service Code ..., his
relationship with the IKA is that of employee and he is a
salaried member of staff - for the duration of his term in office
- of a public-law entity; consequently, he is subject to the
disqualification from election provided for in Article 56 para. 3
...
..."
28. In a dissenting opinion five members of the Special Supreme Court
took the view that, like the governor, the deputy directors were the
highest-ranking organs of the IKA, and not members of its staff, for
five reasons: (a) a distinction was drawn in the IKA's articles of
association (Article 2) between the "management", which included the
board of directors, the governors and the deputy directors, and the
"departments", to which the IKA's "members of staff" were attached;
(b) the deputy directors were excluded from the provisions of the
royal decree ... "on the application of the Civil Servants Code to the
IKA's members of staff" by Article 2 of that Code; (c) deputy directors
were not subject to disciplinary measures, whereas being so subject was
a decisive factor for classification as a civil servant or as a member
of staff of a public-law entity; (d) deputy directors were not
subordinate to the governor in the exercise of the powers he had
delegated them, which they would necessarily have been if they were
civil servants; and (e) they had a right to vote when chairing meetings
of the IKA's board of directors as the governor's replacement.
II. Relevant domestic law
A. The Constitution
29. The relevant Articles of the Constitution provide:
Article 15 para. 2
"Radio and television shall be subject to direct State control.
Their aim shall be the objective, even-handed broadcasting of
information and news and of literary and artistic works; quality
of programmes must be maintained in all cases, in view of their
social role and the country's cultural development."
Article 56
"1. Salaried civil and public servants, officers of the
armed forces and the security forces, employees of
local authorities or other public-law entities, the mayors of
municipalities, the governors or chairmen of boards of directors
of public-law entities or public or municipal undertakings,
notaries and land registrars may not stand as candidates or be
elected as members of parliament if they have not resigned before
becoming candidates. Resignation shall take effect as soon as
it is submitted in writing. A member of the armed forces who
resigns may not be reinstated. Civil and public servants may not
be reinstated until a year has elapsed after their resignation.
...
3. Salaried civil servants, active members of the armed forces
and officers of the security forces, members of staff of
public-law entities in general, and the governors and members of
staff of public or municipal undertakings or charitable bodies
may not stand as candidates or be elected as members of
parliament in any constituency where they have performed their
duties for more than three months during the three years
preceding the elections. The permanent secretaries of ministries
during the last six months of the four-year parliamentary term
shall be subject to the same restrictions. Candidates for
election to the State Parliament and subordinate civil servants
from the central departments of State shall not be subject to
these restrictions.
..."
Article 58
"Where the validity of legislative elections is contested because
of irregularities in the electoral process or a candidate's
failure to meet the requirements laid down by law, the elections
shall be reviewed and any disputes arising from them heard by the
Special Supreme Court referred to in Article 100."
Article 103
"1. Civil servants shall carry out the State's will and serve the
people; they shall abide by the Constitution and be devoted to
their country. The qualifications and procedural requirements
for their appointment shall be laid down by law.
...
5. The benefit of irremovability may be withdrawn by statute from
senior civil servants on secondment, persons directly appointed
as ambassadors, members of the private offices of the President
of the Republic, the Prime Minister, ministers and ministers of
State.
..."
B. The case-law of the Special Supreme Court
30. In a judgment (no. 46/1990) of 12 December 1990 the
Special Supreme Court held that the chairman of the board of directors
of a public undertaking (the Greek Organisation for Small and
Medium-Sized Businesses in the Craft Industry - "EOMMEX") could not be
equated with the governor of such an undertaking and was not therefore
subject to the disqualification from standing for election provided for
in Article 56 para. 3 of the Constitution. In particular, the
Special Supreme Court said:
"... In using the word `governor', the Constitution is referring
to the single person, the organ of the undertaking that, under
the provisions governing the undertaking and the general law,
runs it, that is to say the organ that alone decides, under its
powers as laid down by law or in the articles of association,
questions concerning the management of the undertaking (such as
achieving its objectives, managing staff and making agreements).
What matters for the purposes of [Article 56 para. 3] is to know
what the powers concerned are, not the description of the elected
member as `governor', as it cannot be ruled out that a person who
is not so described in the articles of association of the
undertaking ... may perform such duties even though his title is
that of chairman of the board of directors.
... It is apparent from the foregoing that the person who acts
as chairman of the board of directors of EOMMEX cannot be
described as `governor' in the aforementioned sense.
The chairman (a) draws up the agenda; (b) receives reports on the
functioning of the entity from its manager; (c) supervises the
manager's implementation of the board of directors' resolutions;
and (d) represents EOMMEX in court proceedings whilst being
empowered to assign that task to other people ... He cannot, by
virtue of these functions, which are the only ones the law
allocates to him, be described as a `governor' of the
organisation, since none of them, not even the last one,
corresponds to the concept of managerial act ... The position
would be different had the manager's functions been assigned to
the chairman, since in that eventuality the chairman of the board
of directors would actually be `managing' the organisation.
..."
31. The Special Supreme Court has also held that the
Secretary-General of the Greek Tourist Board ("EOT") and the Governor
of the Social Security Fund ("IKA") were not caught by the
disqualification in Article 56. With regard to the Secretary-General,
it held (in judgment no. 15/1978) that he was not subordinate to EOT's
board of directors, to which he was in no way answerable, not even for
disciplinary purposes; with regard to the Governor it held (in
judgments nos. 4 and 5/1991): "It is apparent from paragraph 3 of
Article 56 - in which the grounds for disqualification from standing
for election, which must be strictly construed, are exhaustively set
forth - read together with paragraph 1 of that Article that the
governors of public-law entities, who are covered by the disabilities
referred to in paragraph 1 ... are not covered by those in paragraph 3
as they are not included among the exhaustive list of persons subject
to disqualification."
PROCEEDINGS BEFORE THE COMMISSION
32. Mr Gitonas applied to the Commission on 12 June 1991,
Mr Paleothodoros and Mr Sifounakis on 22 November 1991, Mr Kavaratzis
on 16 May 1995 and Mr Giakoumatos on 28 May 1995. Relying on Article 3
of Protocol No. 1 (P1-3), they complained that their election to the
Greek Parliament had been annulled because they had been in
public office within the three preceding years.
33. In a decision of 10 October 1994 the Commission joined the
three applications of Mr Gitonas, Mr Paleothodoros and Mr Sifounakis
(nos. 18747/91, 19376/92 and 19379/92). It declared their applications
admissible on 1 March 1995 and those of Mr Kavaratzis (no. 28208/95)
and Mr Giakoumatos (no. 27755/95) admissible on 24 June and 14 May 1996
respectively.
In its reports of 7 March 1996, 28 November 1996 and
21 January 1997 (Article 31) (art. 31), it expressed the opinion, by
nine votes to eight in the case of Mr Gitonas and Others, sixteen votes
to twelve in the case of Mr Kavaratzis and fourteen votes to twelve in
the case of Mr Giakoumatos that there had been a violation of
Article 3 of Protocol No. 1 (P1-3). The full text of the Commission's
opinions on the three applications and of the separate opinions
contained in the reports is reproduced as an annex to this
judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
34. In their memorials the Government submitted: "In the present case
the disqualifications referred to in Article 56 para. 3 of the
Greek Constitution and the annulment of the applicants' election by the
judgments of the Special Supreme Court pursuant to that provision are
neither arbitrary nor irrational and do not infringe the
free expression of opinion of the electorate; on the contrary, they are
consistent with the principle of equality of treatment for all citizens
in the exercise of their right to stand for election and with the
political evolution and the reality of public political life in Greece.
Consequently, they do not exceed the margin of appreciation reserved
to the States." They invited the Court "to reject the applications ...
in their entirety".
35. Mr Giakoumatos concluded as follows:
"There is no statutory basis whatsoever for assimilating the
applicant to a member of staff of a public-law corporation. On
the other hand, the law provides that the deputy directors are
not members of the administrative staff of the
Social Security Fund (Article 2 of
Presidential Decree no. 266/1989), just as it also expressly
precludes them from the scope of the Civil Servants Code
(Article 2 of Royal Decree no. 993/1966).
Furthermore, where the citizen's right to be elected to
Parliament is concerned, the Constitution must be strictly, not
broadly, construed to the letter of the provisions on
disqualification, so as not to introduce new grounds for
disqualification from holding parliamentary office.
However, the Special Supreme Court assimilated the status of
second deputy director to that of a member of staff of a
public corporation operating in the public interest and followed
a line of reasoning that was contrary to the above-mentioned
legislation and also to the principle that fundamental rights are
not to be subject to restrictions, especially not grounds for
disqualification without statutory basis because such grounds
cannot be presumed.
Accordingly, the Special Supreme Court violated Article 3 of
Protocol No. 1 to the Convention (P1-3) in its judgment
no. 9/1995, since it reduced the scope of the electorate's right
to elect the candidates of its choice and at the same time
infringed my right to be elected to Parliament."
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 (P1-3)
36. The applicants alleged that the annulment of their election by
the Special Supreme Court pursuant to Article 56 para. 3 of the
Constitution infringed the right of the electorate freely to choose its
representatives and, by the same token, their own right to be elected.
They relied on Article 3 of Protocol No. 1 (P1-3), which provides:
"The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in
the choice of the legislature."
They said that Article 56 para. 3 was imprecise and incoherent,
but the substance of their complaints concerned the decisions of the
Special Supreme Court, which, contrary to its case-law, had construed
Article 56 para. 3 broadly thereby creating a new ground for
disqualification not contained in that Article. That was despite the
fact that the grounds for disqualification were exhaustively set out
in the Constitution itself and had to be strictly construed.
37. The Government maintained that the restrictions laid down by
Article 56 para. 3 of the Constitution on public and civil servants,
such as the applicants, standing for election were not arbitrary and
did not prevent the free expression of the opinion of the people in the
choice of the legislature. They were known in advance to prospective
candidates thus enabling them to make appropriate arrangements and were
aimed at ensuring both the genuine manifestation of the people's will
through equality of treatment of candidates for election and the full
exercise of the individual right guaranteed by Article 3 of
Protocol No. 1 (P1-3). Moreover, the realities of Greek political life
had been taken into account in the restrictions, which in addition
tended to preserve the neutrality of the civil service, the
independence of members of parliament and the principle of the
separation of powers. Lastly, in requiring civil servants wishing to
stand as candidates to vacate office thirty-three months before the
elections, the constitutional legislature had not exceeded the margin
of appreciation afforded Contracting States by Article 3 of
Protocol No. 1 (P1-3).
38. In the Commission's view, the system for disqualification
instituted by Article 56 para. 3 was incoherent. The incumbents of
posts in public office that were far more important than those occupied
by the applicants - such as ministers, mayors or several other
high-ranking civil servants - and which gave much more scope for
influencing the electorate, were not subject to the restrictions set
out in that paragraph. Secondly, no account was taken of the exact
period - which in addition was very short - when the position giving
rise to disqualification had been held during the three years preceding
the elections. Thirdly, the virtually irrebuttable presumption of
disqualification created by the said paragraph prevented the courts
considering the nature of the post concerned, the effective length of
time it had been held and the level of responsibility it implied.
Lastly, it had not been shown in the instant case that the applicants
had derived a benefit from their positions or gained an advantage over
other candidates. Considering that the annulment of their election was
not justified by the need to protect the Greek electorate, it concluded
that there had been a violation of Article 3 of Protocol No. 1 (P1-3).
39. The Court reiterates that Article 3 of Protocol No. 1 (P1-3)
implies subjective rights to vote and to stand for election. As
important as those rights are, they are not, however, absolute. Since
Article 3 (P1-3) recognises them without setting them forth in express
terms, let alone defining them, there is room for "implied limitations"
(see the Mathieu-Mohin and Clerfayt v. Belgium judgment of
2 March 1987, Series A no. 113, p. 23, para. 52). In their internal
legal orders the Contracting States make the rights to vote and to
stand for election subject to conditions which are not in principle
precluded under Article 3 (P1-3). They have a wide margin of
appreciation in this sphere, but it is for the Court to determine in
the last resort whether the requirements of Protocol No. 1 (P1) have
been complied with; it has to satisfy itself that the conditions do not
curtail the rights in question to such an extent as to impair their
very essence and deprive them of their effectiveness; that they are
imposed in pursuit of a legitimate aim; and that the means employed are
not disproportionate (ibid.).
More particularly, the States enjoy considerable latitude to
establish in their constitutional order rules governing the status of
parliamentarians, including criteria for disqualification. Though
originating from a common concern - ensuring the independence of
members of parliament, but also the electorate's freedom of choice -,
the criteria vary according to the historical and political factors
peculiar to each State. The number of situations provided for in the
Constitutions and the legislation on elections in many member States
of the Council of Europe shows the diversity of possible choice on the
subject. None of these criteria should, however, be considered more
valid than any other provided that it guarantees the expression of the
will of the people through free, fair and regular elections.
40. The Court notes that paragraph 3 of Article 56 of the
Constitution, which was applied in the applicants' case, establishes
grounds for disqualification that are both relative and final in that
certain categories of holders of public office - including salaried
public servants and members of staff of public-law entities and
public undertakings - are precluded from standing for election and
being elected in any constituency where they have performed their
duties for more than three months in the three years preceding the
elections; the disqualification will moreover stand notwithstanding a
candidate's prior resignation, unlike the position with certain other
categories of public servant under paragraph 1 of that Article
(see paragraph 29 above).
Such disqualification, for which equivalent provisions exist in
several member States of the Council of Europe, serves a dual purpose
that is essential for the proper functioning and upholding of
democratic regimes, namely ensuring that candidates of different
political persuasions enjoy equal means of influence (since holders of
public office may on occasion have an unfair advantage over other
candidates) and protecting the electorate from pressure from such
officials who, because of their position, are called upon to take many
- and sometimes important - decisions and enjoy substantial prestige
in the eyes of the ordinary citizen, whose choice of candidate might
be influenced.
41. The Court acknowledges that the system introduced by Article 56
is somewhat complex. However, it has not encountered any of the
incoherencies referred to by the Commission and still less would it say
that the system is arbitrary.
With regard to the alleged special treatment that paragraph 1 of
Article 56 affords to certain categories of civil servant and
politician who, through their position, are better placed to influence
the electorate, the Court agrees with the Government's arguments.
Unlike the positions referred to in paragraph 3 of Article 56, which
are purely administrative posts, the feature common to those referred
to in paragraph 1 is their political nature and the political
responsibility which that entails. Mayors and heads of municipalities,
in company with members of parliament, owe their position directly to
the electorate. Governors and presidents of public-law entities and
other high-ranking civil servants appointed by the Government conceive
and implement Government policy in their field of activity and are thus
subject, like ministers, to parliamentary scrutiny.
As for the objective establishment of criteria for
disqualification, which is laid down by paragraph 3 of Article 56 and
prevents the Special Supreme Court from having regard to any special
features of the case, the Court does not find it unreasonable having
regard to the enormous practical difficulty in proving that a position
in the civil service has been used to electoral ends.
42. The applicants' case was in substance aimed at showing that not
only did their positions fall outside the scope of Article 56 para. 3,
but also that there was nothing in the Special Supreme Court's case-law
to suggest that it would come to the decision it did. More
particularly, Mr Gitonas's secondment could not alter his status as an
employee of the Investment Bank and could not be compared with an
appointment as a civil servant since the post of Deputy Head of the
Prime Minister's private office had been created illegally, as it had
no statutory basis. The posts of Mr Paleothodoros and Mr Sifounakis
(Directors-General of the first and second national
television channels) could not be equated with that of the Chairman of
the Greek Broadcasting Company or of a member of staff of a
public undertaking with responsibilities in all Greek constituencies.
Lastly, Mr Kavaratzis and Mr Giakoumatos, first and second deputy
directors of the IKA, could not be considered to be members of staff
of a public-law entity with nationwide activities since the nature of
their duties meant that their posts were more akin to that of the
Governor of the IKA, which the Special Supreme Court had already found
was not caught by Article 56 para. 3.
43. The Government agreed with the reasoning of the
Special Supreme Court in its decisions concerning the applicants. It
emphasised that if the European Court were to embark on its own
analysis of the relevant legislation, it would become a further level
of jurisdiction superimposed on those existing in the
Contracting States.
44. The Court points out that it is primarily for the
national authorities, and in particular the courts of first instance
and of appeal, which are specially qualified for the task, to construe
and apply domestic law.
It notes that the positions held by the applicants were not among
those expressly referred to in Article 56 para. 3. However, that did
not guarantee them a right to be elected. The Special Supreme Court
has sole jurisdiction under Article 58 of the Constitution
(see paragraph 29 above) to decide any dispute over disqualifications
and, as in any judicial order where such a system exists, anyone
elected in breach of the applicable rules will forfeit his position as
a member of parliament.
In the instant case the Special Supreme Court, after analysing
the nature of the posts held by the applicants and the applicable
legislation, held that the posts were similar to the ones described in
paragraph 3 of Article 56; it further found that the conditions
relating to when the position was held, and the duration and extent of
the duties, were met in the case of each of the applicants. On
reasonable grounds it considered it necessary to annul their election
(see paragraphs 10, 14, 18, 22 and 27 above).
The Court cannot reach any other conclusion; there is nothing in
the judgments of the Special Supreme Court to suggest that the
annulments were contrary to Greek legislation, arbitrary or
disproportionate, or thwarted "the free expression of the opinion of
the people in the choice of the legislature" (see, mutatis mutandis,
the aforementioned Mathieu-Mohin and Clerfayt judgment, p. 25,
para. 57).
Consequently, there has been no violation of Article 3 of
Protocol No. 1 (P1-3).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 3 of
Protocol No. 1 (P1-3).
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 1 July 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar