CASE OF GITONAS AND OTHERS v. GREECE
No violation of P1-3
C. Russo;N. Valticos;R. Pekkanen
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. 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 directorgeneral 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. 15. On 25 February 1987 Mr Sifounakis was appointed DirectorGeneral 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. 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. 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 highestranking 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. 29. The relevant Articles of the Constitution provide: "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." "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. ..." "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." "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. ..." 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."