THIRD SECTION
CASE OF GEORGIOU v. GREECE
(Application no. 57378/18)
 
 
 
JUDGMENT
Art 6 § 1 (criminal) • Fair hearing • Court of Cassation’s failure to examine, without giving reasons, applicant’s request to seek a preliminary ruling from the Court of Justice of the European Union
Art 46 • Execution of judgment • Reopening of domestic proceedings, if requested, to allow examination of preliminary reference request

 
STRASBOURG
14 March 2023
 
FINAL
 
10/07/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Georgiou v. Greece,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Yonko Grozev,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 57378/18) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Andreas Georgiou (“the applicant”), on 3 December 2018;
the decision to give notice to the Greek Government (“the Government”) of the complaint concerning Article 6 § 1 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision not to hold a hearing;
Having deliberated in private on 14 February 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns a request to the Greek Court of Cassation to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) which was made by the applicant in the context of criminal proceedings against him, and the alleged absence of any reasoning by the Court of Cassation in tacitly refusing this request. THE FACTS
2. The applicant was born in 1960 and lives in Darnestown (Maryland, United States). The applicant was represented by Mr S. Potamitis, Mr K. Papadiamantis and Ms V. Psaltis, lawyers practising in Athens, and by Mr A. Demetriades, a lawyer practising in Nicosia. 3. The Government were represented by their Agent’s delegates, Ms E. Tsaousi, Legal Counsellor at the State Legal Council and Ms A. Dimitrakopoulou, Senior Adviser at the State Legal Council. 4. The facts of the case may be summarised as follows. 5. The applicant was the president of the Hellenic Statistical Authority (ELSTAT) from 2 August 2010 to 2 August 2015. 6. On 10 November 2010, the applicant transmitted revised data concerning the Greek deficit for the year 2009 to Eurostat. The applicant had not presented the data for approval to the seven-member administrative board of ELSTAT in advance. 7. The applicant claimed that his actions complied with the principle of professional independence in the European Statistics Code of Practice, Principle 1.4 of which explicitly gave him “sole responsibility” as head of the statistical authority, for the decision to release statistics. 8. On an unspecified date, criminal proceedings were instituted against the applicant for breach of duty. 9. On 6 December 2016 the applicant was acquitted at first instance of all three charges against him by the three-member Athens Criminal Court (judgment no. 40428 A/2016). The charges were the following:
(i) breach of his official duty of full and exclusive employment with ELSTAT, because at the time of his appointment he had also continued to hold a position at the International Monetary Fund;
(ii) breach of his official duty to convene the board of ELSTAT from November 2010 to September 2011; and
(iii) breach of his official duty in that he had released the fiscal deficit information for 2009 without communicating it first to the administrative board of ELSTAT or asking for its consent to the release. 10. The prosecutor of the Athens Criminal Court appealed. 11. On 1 August 2017 the Athens Court of Appeal held that the applicant had committed the offence of breach of duty, and found him guilty of the third of the above charges and not guilty of the rest. The applicant was sentenced to two years’ imprisonment, the sentence being suspended (judgment nos. 3103/2017 and 4480/2017). In particular, the appellate court found the applicant guilty because:
“In Athens, on 10 November 2010, he ... transmitted to Eurostat a report on Greece’s fiscal data, including the fiscal deficit data for 2009, without communicating them to ELSTAT as a body and without obtaining ELSTAT’s consent, in breach of Article 10 § 2 A of Law no. 3832/2010, as it read at the time, by which ‘ELSTAT shall in particular (a) prepare and implement the national statistical plan and compile and publish, in its capacity as “National Statistical Service” as defined in Article 5 § 1 of Regulation (EC) no. 223/2009, the official, national and European statistics of Greece ...’ He committed this act intentionally with the purpose of gaining an illegal moral benefit, as specified in the description of the partial act referred to above at sub-paragraph (b), which consisted in the strengthening of his power as president of ELSTAT and his becoming a quasi-one-person executive organ by effectively abolishing the aforementioned body for practical purposes and usurping its powers. The above act was an objectively appropriate means of gaining the intended benefit.”
12. The applicant introduced an appeal on points of law. 13. By a memorandum of additional grounds dated 21 March 2018, the applicant requested that a preliminary ruling be sought from the CJEU. In particular, he argued:
“... If, nevertheless, there is any doubt as to the correct interpretation of the crucial provision, your Court ought to, pursuant to Article 267 TFEU, request the Court of Justice of the European Union to issue a preliminary ruling on the true intent of Principle 1.4 of the European Statistics Code of Practice. If such preliminary reference is not made, this will constitute a violation of my right to a fair hearing, as defined in Article 6 of the European Convention on Human Rights ...”
14. On 7 June 2018 the Court of Cassation rejected his appeal on points of law (judgment no. 977/2018). In that judgment, there is no reference to the applicant’s request for a preliminary ruling to be sought from the CJEU. RELEVANT LEGAL FRAMEWORK
15. The relevant domestic and European Union law and practice is described in the Court’s judgments in Gorou v. Greece (no. 2) ([GC], no. 12686/03, § 15, 20 March 2009), Baydar v. the Netherlands (no. 55385/14, §§ 21-29, 24 April 2018) and Ilias Papageorgiou v. Greece (no. 44101/13, § 14, 10 December 2020). 16. Principle 1.4 of the European Statistics Code of Practice reads as follows:
“The heads of the National Statistical Institutes and of Eurostat and, where appropriate, the heads of other statistical authorities have the sole responsibility for deciding on statistical methods, standards and procedures, and on the content and timing of statistical releases.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17. The applicant complained that the Court of Cassation had rejected the request for a preliminary reference without any justification. He relied on Article 6 of the Convention, the relevant parts of which read as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
18. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

19. The applicant argued that, despite the Court’s case-law, the Court of Cassation had failed to address his request for a preliminary reference to the CJEU. Not only had the Court of Cassation not examined the relevant criteria or provided any reasons for its refusal to seek a preliminary ruling but it had not even mentioned the applicant’s request. In addition, it had not even mentioned the applicant’s memorandum in which that request had been made. In the memorandum, the applicant had explained what the correct interpretation of Principle 1.4 was, provided evidence as to the meaning of that principle in support of his interpretation and asked the Court of Cassation, if it still had doubts as to the correct interpretation, to seek a preliminary ruling. In the applicant’s submission, the request in the memorandum was clear and it was not conditional on whether the Court of Cassation had any doubt as to the meaning of the relevant provision. The applicant added that the principle of independence of the president of ELSTAT was of fundamental importance for the reliability of national statistics within the European Union (EU). The failure of the Court of Cassation to address this critical issue meant that the applicant’s fundamental professional duty as president had not been given due and proper consideration. 20. The Government submitted that it was evident from the wording of the request for a preliminary reference that the applicant had raised an issue to be dealt with only if the Court of Cassation had any doubt as to the interpretation of Principle 1.4 of the European Statistics Code of Practice. In the Government’s submission, the contents of the judgment of the Court of Cassation showed that the ruling of the domestic courts could not be considered arbitrary, totally unreasoned, contradictory or incoherent, and so no issue arose under Article 6 § 1. It had not been necessary for the Court of Cassation to give a detailed answer. In addition, it had included in its judgment the crucial detailed considerations of the court dealing with the merits of the case. There was therefore no doubt that the domestic courts had paid due attention, taken all the applicant’s allegations into account and assessed them, and provided adequate reasoning, in line with the requirements of the Convention. 21. Regarding in particular the rejection of the request for a preliminary reference to the CJEU, the Government argued that it was clear that the Court of Cassation had been in no doubt as to the interpretation and meaning of the provisions applied, “which is not negated by a possibly different interpretation proposed by the applicant”. The provisions, including Principle 1.4 of the European Statistics Code of Practice, were, according to the assessments of both the Court of Cassation and the Court of Appeal, sufficiently clear, and therefore no preliminary reference to the CJEU was necessary for the domestic courts to reach their final judgment. An interpretation by the CJEU of the words “the sole responsibility” in Principle 1.4 of the European Statistics Code of Practice, regardless of the formal force of the Code, would not contribute materially to the assessment of the grounds of appeal by the Court of Cassation. Therefore, a request for a preliminary ruling, even if considered admissible by the CJEU, would have had no decisive influence on the outcome of the case. The Government further argued that it would in any event be for the national court to apply EU law after the issuance of the preliminary ruling, which would not have any decisive influence on the outcome of the case. In any event, in the present case a preliminary ruling had not been considered necessary by the domestic courts.

Article of the Convention at issue: Article 6
Outcome: violation