ANASTASSAKOS AND OTHERS v. GREECE
Inadmissible
Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis
The applicants, Mr Ioannis Anastassakos, Mr Spyridon Zavitsanos and Mr Stavros Leoussis are Greek nationals who were born in 1955, 1957 and 1944 respectively. They live in Athens. They are represented before the Court by Mr N. Alivizatos and Mr Y. Ktistakis, both lawyers practising in Athens. The Greek Government (“the Government”) are represented by their Agent, Mr M. Apessos, Senior Adviser at the State Legal Council, Mrs U. Patsopoulou, Adviser at the State Legal Council and Mrs S. Trekli, Legal Assistant at the State Legal Council. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants have a direct or indirect involvement in the operation of AGB, a company under Greek law, which specialises in providing television audience measurement services. In particular, the first applicant was the first managing director of AGB, currently holds 5% of that company’s shares and is the chairman of the board of directors. The second applicant has been the managing director of AGB since 2003. The third applicant was one of the co-founders of AGB and today holds 18% of the company’s shares. AGB was founded in 1987 and has remained the sole provider of TV audience data to the present day. The applicants state that it has been noticed worldwide that the relevant national markets prefer to share a common source of television audience data. This is due to the fact that commonly accepted television data in the context of national markets form a decisive parameter in the decision-making process, as regards advertising investment strategies. The applicants submit that Greece is a unique case in the field of terrestrial television broadcasting owing to the fact that, under the successive laws that have been enacted since 1989, when the State monopoly was abolished, there are today at least five private, fifty regional and sixty local television channels, none of which has a proper operating licence. It is submitted that in this context of institutional anarchy AGB’s role has become more crucial than in other countries. The applicants claim that, for this reason, AGB has occasionally been the target of campaigns in which its professionalism and reputation have been attacked. In 2002 a high-ranking executive of Alpha TV drafted and made public a report on AGB’s activities suggesting that AGB and its executives had committed irregularities with regard to the choice of sample and the subsequent processing of television data. The Television Audience Measurement Committee, an independent committee created by virtue of section 11(4) of Law no. 2328/1995, conducted a special investigation and cleared AGB of all charges. In autumn 2004 Alpha TV, which at the time was allegedly facing major financial difficulties and low ratings, again drew attention to the above-mentioned report. The latter gained widespread publicity, and on 14 December 2004 a preliminary examination was ordered in respect of AGB’s managers by the Athens Public Prosecutor’s Office. In February 2006 all three applicants were summoned to the prosecutor’s office to answer rather general questions, without being bound by oath (ανομωτί). On 30 March 2006 the public prosecutor initiated criminal proceedings against the applicants for the concurrent offences of fraud, fraud committed against the State and filing of false statements before an administrative authority. On the same date, the case file was transmitted to the investigating judge. The applicants submit that, on 30 March 2006, during the regular off-the-record meeting of the senior prosecuting authority with the media held on the premises of the Court of Cassation, journalists were briefed that criminal proceedings were to be initiated against the three applicants in relation to AGB’s alleged irregularities. Long excerpts and explicit details about the allegations were read from the unofficial prosecutor’s report (πόρισμα). This report is only an internal document and Greek law does not provide for such a report. It is only by way of a working practice that such reports are drafted by the prosecutor in charge as an informal description and assessment of the facts for the sole purpose of briefing the supervising prosecutor on the case. Moreover, the accused had not yet been notified of the report, and therefore the applicants had no official knowledge of its content. On the same day, M.T., a journalist hosting a popular television show, Η Ζούγκλα (“The Jungle”), appeared before a large panel of guests, holding a copy of the prosecutor’s confidential report. While showing the report on camera with frequent close-ups, he went on to read out extensive parts of it. Quoting selected extracts from the report, he stated that AGB was an integral part of a “network of conspiracy” and the “real centre of power” in Greece, both at political and at economic level. Other guests participating in the panel stated that AGB not only built or destroyed TV careers but also distributed millions and constituted a “spider’s web” and a “fraudulent trap”. The following day’s newspapers contained extensive articles on the case. Three Athens dailies quoted parts of the prosecutor’s confidential report, and one of them published photographs of the first two applicants and another three pages of the original report. The story caused such interest throughout Greece that, on the evening of 31 March 2006, the first and third applicants were forced to answer pressing questions by journalists live on two of the most popular evening television broadcasts. The applicants submit that both their private and professional lives have dramatically changed. After the disclosure of the prosecutor’s report and the ensuing publicity, they are allegedly looked upon with distrust and disapproval and are in a state of uncertainty as to their future careers. They state that the impact on their private lives has also been considerable. In particular, the first applicant started receiving anonymous hostile telephone calls and letters, which forced him to seek protection for his premises from private security guards. After the television reports, the first and second applicants’ children started using their mothers’ maiden name at school, so as to avoid further abuse. The second applicant, having already had health problems with his vocal cords, suffered a relapse, which required a second operation, after the above-mentioned events took place. On 26 June 2009 the Indictment Division of the Athens Court of Appeal dismissed all the charges against the applicants (decision no. 1294/2009). It stated, inter alia, that there were no grounds to commit the applicants for trial. 1. The relevant provisions of the Constitution provide as follows: “1. All persons are entitled to information, as specified by law. Restrictions to this right may be imposed by law only in so far as they are absolutely necessary and justified for reasons of national security, combating crime or protecting the rights and interests of third parties. 2. All persons are entitled to participate in the Information Society. Facilitation of access to electronically processed information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of Articles 9, 9A and 19.” “Actions against judicial officers for miscarriage of justice shall be tried, as specified by law, by a special court composed of the President of the Supreme Administrative Court, as President, and one councillor of the Supreme Administrative Court, one Supreme Civil and Criminal Court judge, one councillor of the Court of Auditors, two law professors of the law schools of the country’s universities and two lawyers from among the members of the Supreme Disciplinary Council for lawyers, as members, all of whom shall be chosen by lot. In each case, the member of the special court who belongs to the judicial body or branch the actions or omissions of an officer of which the court is called upon to judge shall be exempted. In the case of an action against a member of the Supreme Administrative Court or an officer of the ordinary administrative courts, the special court shall be presided over by the President of the Supreme Civil and Criminal Court. No permission shall be required to institute an action for miscarriage of justice.” 2. The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant: “The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.” “The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.” This section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely, the unlawfulness of the act or omission. 3. The relevant provisions of the Civil Code read as follows: “Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.” “In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’ “Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused...” “In the case of an unlawful act, the court may, irrespective of any award of compensation for pecuniary damages, award reasonable compensation ... for any non-pecuniary harm suffered...” 4. The relevant provisions of the Criminal Code read as follows: “1. Anyone who is under the legal obligation to perform judicial duties and discloses to a third person confidential information of the deliberations or the vote in which he took part shall be punished by up to two years’ imprisonment. (...)” “A civil servant who, with the exception of cases described under Articles 248, 249, 250 and 251, deliberately and with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party, discloses to a third person (a) information which came to his knowledge because of his position or (b) a document either entrusted to him or accessible to him owing to his position, shall be punished by at least three months’ imprisonment.” “A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law.” “1. Except in cases which amount to defamation (Articles 362 and 363), anyone who by words or by deeds or by any other means injures another’s reputation shall be punished by up to one year’s imprisonment or by a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment. 2. If the injury to reputation is not severe, considering the circumstances and the person injured, the offender shall be punished by imprisonment or a fine. 3. The provision of paragraph 3 of Article 308 shall apply in this case.” “1. An insult committed through an act (Article 361, paragraph 1) shall be punishable by at least three months’ imprisonment if it was unprovoked by the victim. 2. If two or more persons participated in the act referred to in the previous paragraph, it shall be punishable by at least six months’ imprisonment.” “Anyone who by any means disseminates information to a third party concerning another which may damage the latter’s character or reputation shall be punished by up to two years’ imprisonment or a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.” “If, in a case under Article 362, the information is false and the offender was aware of the falsity thereof, he shall be punished by up to three months’ imprisonment, and, in addition, a pecuniary penalty may be imposed and deprivation of civil rights under Article 63 may be ordered.” “1. Anyone who by any means asserts or disseminates information concerning a corporation with respect to its business, financial position, products or members of its board of directors which may lower the confidence of the public in the corporation and generally harm its business shall be punished by up to one year’s imprisonment or a pecuniary penalty. 2. If the accused proves the truth of the information which he asserted or disseminated, he shall not be punished. 3. If the information which the accused asserted or disseminated is false, and he was aware of the falsity thereof, he shall be punished by imprisonment.” Article 241 of the Code of Criminal Procedure reads as follows: “The judicial investigation takes place in writing and without any publicity (...)” 5. Article 99 of the Magistrates’ Code provides in so far as relevant: « (...) 2. The competent judicial authorities are bound to initiate disciplinary proceedings when their attention is drawn by any means to acts committed by the judiciary which may constitute a disciplinary fault (...)” 6. Section 22(4) of Law no. 2472/1997 provides: “Anyone who unlawfully interferes in any way whatsoever with a personal data file, or takes notice of such data, or extracts, alters, adversely affects, destroys, processes, transfers, discloses, makes accessible to unauthorised persons, or permits such persons to take notice of, such data or anyone who exploits such data in any way whatsoever, shall be punished by imprisonment and a fine and, in the case of sensitive data, by imprisonment for a period of at least one (1) year and a fine amounting to between one million drachmas (GRD 1,000,000) and ten million drachmas (GRD 10,000,000), unless otherwise subject to more serious sanctions.” 7. In its Köbler judgment of 30 September 2003 (Case C-224/01) the Court of Justice of the European Communities made clear that, since, in international law, a State which incurred liability for a breach of an international commitment was viewed as a single entity, irrespective of whether the breach which gave rise to the damage was attributable to the legislature, the judiciary or the executive, that principle must apply a fortiori in the Community legal order since all State authorities, including the legislature, were bound, in performing their tasks, to comply with the rules laid down by Community law which directly governed the situation of individuals.