THE FACTS
The facts of the case as submitted by the applicant may be summarised as follows:
The applicant is a Danish citizen, born in 1906 and resident at B. in Spain. He is a retired Lieutenant-Colonel and a civil engineer.
He has previously, together with his wife, lodged an application (No.
3504/68) which was declared inadmissible by the Commission on 16 May 1969 and related to his wife's dismissal from her position as a
midwife.
The present application concerns the contents of a certificate of conduct issued by the Danish Ministry of Defence. According to the applicant the Ministry keeps a secret file on each individual officer which includes annual statements by the competent superior as to the officer's suitability for promotion. If fault is found with an officer, it is the duty of his superior to warn him and to afford him an
opportunity to correct this. No disparaging remarks should be recorded in the annual statement without informing the officer concerned. An officer is at any time entitled to have a certificate of conduct issued which must be founded on the contents of the reports on his service.
The applicant states that in 1936 he was appointed a principal officer (fuldmaegtig) at the Building Office of the Ministry. He then found that the accounting system of the office was inadequate. After having passed university exams in public accounting and book-keeping he altered this system. The applicant also discovered other inadequacies in the army building service. He claims that a report on these
conditions which he submitted was suppressed by Major-General T., a senior official at the Ministry.
When the applicant left the Office in 1942, the Ministry issued a certificate of conduct according to which he had shown considerable administrative ability and accomplished his tasks in a thorough and conscientious manner.
In 1946, the applicant was appointed Head of the Building Office, a position he held until the following year. During this period the applicant criticised certain conditions in the army building service and submitted a proposal for the re-organisation of the service. This report was also, however, allegedly suppressed by General T. After he had left the office the applicant drew the attention of the Minister of Defence to the conditions of the building service, but due to the interference of T. no action was taken. In November 1946, T. made a statement as to the applicant's fitness for promotion in which he expressed a critical opinion as to the applicant's economic judgment.
This statement, was, however, kept secret from the applicant until 1961.
The applicant states that certain events in 1948 led to an
investigation of the building service which confirmed the correctness of his criticism and the service was re-organised accordingly. The result of the investigation was not made public, however, in order to protect T. and other senior officers.
In 1954 the applicant received a certificate of conduct according to which his service had been very satisfactory. The following year he was made Head of the Army School for Signal Technicians where he was responsible, inter alia, for the economic affairs of the school and its valuable equipment. For a period of six months he was also in charge of the signal equipment of Seeland with a yearly turnover of ten million Danish Crowns and a large staff. From 1960 until his retirement in 1966, the applicant was attached to the Staff of the Army Signal Office as head of the army's crypto-security service and of the
establishment and maintenance of the army's permanent signal system.
No objection was ever made against his handling of economic matters in any of these positions.
In 1961 the applicant requested a certificate of conduct from the Ministry for the purpose of applying for the position of Director of the Technological Institute of Jutland.
On 7 December 1961, the Ministry issued a certificate which contained the following statement as regards the applicant's previous service as Head of the Building Office:
"As Head of the Building Office .... Lieutenant-Colonel X has consistently carried out his duties in a competent and conscientious manner, but he appears, to some extent, to have shown an insufficient sense of the economic side of the administration and hence a lack of general understanding of economic matters of the office in this field."
The applicant objected to the terms of this statement and asked for a revision of the certificate. This request was, however, refused by the Ministry on .. March 1962. In 1967, the applicant applied to the Army Headquarters for a fresh evaluation of his service. On .. July 1968 the Army Headquarters informed the applicant that it would not alter the statements made in the previous certificate of conduct. This decision was subsequently upheld by the Ministry of Defence on .. March 1969.
By letter of .. December 1968 the applicant laid criminal charges against General T. and two other senior officials for having made false statements about him and thereby having caused him loss in earnings.
According to the applicant, the Public Prosecutor has not taken any action or even replied to his letter.
The applicant lists a number of grounds on which he claims that the statement as to his economic judgment contained in the certificate of conduct is invalid for formal reasons and for reasons of substance. He refers to a number of positions in Denmark and abroad which he has allegedly been prevented from obtaining as a result of the certificate.
The applicant alleges a violation of his right to liberty and security of person as guaranteed under Article 5 of the Convention. He argues, inter alia, that this provision imposes an obligation of a High
Contracting Party to observe all its domestic laws, in its relations with its citizens. The applicant claims in this connection that the Danish Government has violated the following provisions of Danish law, and thereby Article 5 of the Convention:
- the service regulations concerning certificates of conduct;
- Article 146 of the Penal Code (straffeloven) by repeatedly handling matters involving the applicant in an irregular manner and thereby causing him loss of "welfare";
- Article 151 of the Penal Code by including the Army Headquarters to issue a false statement concerning him;
- Article 155 of the Code by repeatedly refusing to act on his complaints;
- Article 162 of the Code by repeatedly issuing a false statement regarding the applicant in a matter where the Government was obliged to make a statement;
- Article 268 of the Code by repeatedly making defamatory statements about the applicant.
The applicant further alleges a violation of Article 6 of the Convention by his being denied the following "civil rights":
- that his certificate of conduct is issued according to the rules in force since this right is protected by Article 155 of the Penal Code;
- that the Danish State does not commit injustice against him as this right is protected by Article 146 of the Penal Code;
- that the State investigates his "notifications" as this right is protected by Article 75 of the Administration of Justice Act and Article 148 of the Penal Code;
- that the State does not induce the Army Headquarters to commit offenses against him as this right is protected by Article 151 of the Code;
- that the State hears his complaints as this right is protected by Article 155 of the Penal Code;
- that the State does not "falsify" his certificate of conduct as this right is protected by Article 162 of the Code; and
- that the State does not make defamatory statements about him as this right is protected by Article 268 of the Code.
The applicant complains that he does not have any possibility of redress as guaranteed under Article 6, in respect of the seven violations of his above-mentioned "civil rights".
The applicant claims compensation.
THE LAW
Whereas, insofar as the applicant complains of the contents of the certificate of conduct issued in 1961, the refusal of his request for a new certificate and the conduct of the proceedings relating to the issuing of the certificates concerned, it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section I of the Convention; and whereas, under Article 25 (1) (Art. 25-1) only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; whereas, otherwise its examination is outside the competence of the Commission ratione materiae;
Whereas no right to be issued a certificate of professional conduct is as such included among the rights and freedoms guaranteed by the Convention; whereas in this respect the Commission refers to its previous decision of 6 February 1967 on the admissibility of application No. 2469/65;
Whereas, however, the applicant alleges in particular that Article 6 (Art. 6) of the Convention was violated during the action taken both in the issuing of these certificates and in the handling of his complaints relating to the 1961 certificate;
Whereas Article 6 (Art. 6) relates only to the determination of civil rights and obligations or of a criminal charge; whereas it is clear that the handling of these matters by the competent administrative authorities was not concerned with the determination of the applicant's civil rights or obligations within the meaning of paragraph 1 of Article 6 (Art. 6-1); whereas it is equally clear that the applicant was not in these proceedings charged with a criminal offence within the meaning of that Article;
Whereas, accordingly, the action taken by the authorities in dealing with these matters fall outside the scope of Article 6 (Art. 6) of the Convention;
Whereas it follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas, in regard to the applicant's complaint as to the alleged failure of the authorities concerned to observe various provisions of Danish law, an examination of the case as it has been submitted, including an examination ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention
and in particular in Article 5 (Art. 5) which has been invoked by the applicant;
Whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;
Whereas, in regard to the applicant's complaint that the Public Prosecutor has failed to take any action on the criminal charges laid by the applicant, it is again to be recalled that only the alleged violation of one of the rights and freedoms set forth in the Convention falls within the competence of the Commission ratione materiae;
Whereas, in accordance with the Commission's constant jurisprudence, no right to have criminal proceedings instituted against officials is as such guaranteed by the Convention (see for example the decision of the admissibility of application No. 2465/65, X v. Federal Republic of Germany, Collection of Decisions, Vol. 24, p. 50);
Whereas it follows that also this part of the application is
incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2) thereof;
Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE
