EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18877/91
Sadik AHMET
against
Greece
REPORT OF THE COMMISSION
(adopted on 4 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-31) . . . . . . . . . . . . . . . . . .3
B. The relevant domestic law
(para. 32). . . . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 33-55) . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 34). . . . . . . . . . . . . . . . . . . . .5
C. As regards Article 10 of the Convention
(paras. 35-54). . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 55). . . . . . . . . . . . . . . . . . . . .8
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . .9
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 10
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Greek national, born in 1947 and resident in
Komotini (Western Thrace, Greece). He was represented before the
Commission by Prof. Tekin Akillioglu, a lawyer practising in Ankara.
3. The application is directed against Greece. The respondent
Government were represented by their Agent, Mr. Vassilios Kontolaimos
of the Legal Council of State.
4. The case concerns the conviction and sentence of the applicant,
one of the political leaders of the Moslem (Turkish) minority in
Western Thrace. He was convicted of disrupting public peace by
distributing, during his election campaign in October 1989, printed
material referring to the Moslem population of Western Thrace as
"Turks". He was sentenced to 15 months' imprisonment. The applicant
invokes Article 10 of the Convention.
B. The proceedings
5. The application was introduced on 11 July 1991 and registered on
27 September 1991.
6. On 3 May 1993 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government submitted their observations on 8 October 1993,
after one extension of the time-limit fixed for this purpose, and their
supplementary observations on 29 October 1993. The applicant replied
on 18 November 1993.
8. On 14 April 1994 the Commission decided to hold a hearing of the
parties. On 20 June 1994 the President of the Commission granted the
applicant legal aid for the representation of his case. The hearing was
held on 1 July 1994. The Government were represented by their Agent,
Mr. Vassilios Kontolaimos and by Ms. Vassilia Pelekou as adviser. The
applicant was represented by Prof. Tekin Akillioglu.
9. On 1 July 1994 the Commission declared admissible the applicant's
complaint under Article 10 of the Convention. It declared inadmissible
the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 13 July 1994.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
B. CONFORTI
I. BÉKÉS
E. KONSTANTINOV
D. SVÁBY
G. RESS
13. The text of this Report was adopted on 4 April 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The applicant was elected Member of Parliament in June 1989 and
was a potential candidate at the election on 5 November 1989. In
October 1989, the applicant and B., another candidate, distributed
leaflets which, inter alia, referred to the "Turkish minority" of
Western Thrace.
18. The applicant and B. were subsequently charged with deceiving the
electoral body (exapatisi eklogeon), an offence under Article 162 of
the Greek Penal Code, because in the leaflet they had stated that the
candidates of the main political parties had created a climate of
terror and anarchy among the Moslem population. They were further
charged with "disrupting public peace" (diataraxi koinis eirinis), an
offence under Article 192 of the Penal Code, by openly and indirectly
inciting citizens to violence or by creating rifts among the population
by the use of the words "Turk(s)" or "Turkish" to identify the Moslems
of Western Thrace.
19. On 25 January 1990 the applicant appeared before the First
Instance Criminal Court (Trimeles Plimmeleiodikeio) of Rhodopi charged
with the above offences. While the interrogation of witnesses was
taking place the applicant requested that one of the judges be
discharged because the way in which he put questions indicated that he
was biased. This request was rejected.
20. The applicant alleges that at one stage he requested the
proceedings to be adjourned because of the absence of his lawyer, but
that his request was also rejected. However this event does not appear
in the records of the hearing.
21. On 26 January 1990 the Court acquitted the applicant of deceit
but found him guilty of disrupting public peace. It held that by the
end of October 1989 the applicant had distributed to the population of
Komotini and other places in the District of Rhodopi printed material
which repeatedly contained the terms "Turk", "Turkish Moslem", and the
"Turkish Moslem minority of Western Thrace", referring to the Greek
Moslem citizens of Rhodopi; he had thereby aimed at creating feelings
of hatred and enmity and at dividing the population; his purpose was
to incite the population of each community to act violently against the
other and to disrupt, as he actually did, the peaceful coexistence of
the Greek Christian and the Greek Moslem communities.
22. The Court sentenced the applicant to 18 months' imprisonment, not
convertible into a fine. His request to suspend the sentence pending
his eventual appeal was rejected by the Court, on the ground, inter
alia, that the applicant was dangerous and that there was a risk that
he would flee to Turkey.
23. The applicant was detained from 26 January to 30 March 1990.
24. On 27 January 1990 the applicant appealed against the above
judgment.
25. By the end of January 1990 violence erupted in Komotini which
resulted in damage to numerous businesses and shops. A Christian was
killed by a Moslem in a hospital.
26. On 30 March 1990 the Court of Appeal (Trimeles Efeteio) of Patras
confirmed the first instance judgment, finding the applicant guilty of
disrupting public peace.
27. The Court stated that the applicant had deliberately described
the Greek Moslems of Western Thrace as "Turks", although he knew that
the 1923 Treaty of Lausanne refers to and recognises only a religious
(Moslem) minority and not a Turkish (ethnic) minority. It held that the
applicant aimed at creating feelings of hatred and hostility within the
Moslem community towards the Greek Christians, and that he had
succeeded in disrupting public peace in Komotini, as well as provoking
violent events in this town. However, the Court of Appeal reduced the
sentence to 15 months' imprisonment, convertible to a fine.
28. On 8 April 1990, after his release from prison, the applicant was
re-elected to the Greek Parliament.
29. On 24 October 1990 the applicant appealed to the Court of
Cassation (Areios Pagos).
30. In his appeal he complained that the charges against him were
vague and that the courts should have declared the prosecution case
inadmissible. He further complained that the judgment of the Court of
Appeal was not sufficiently reasoned as required by the Constitution
and the law. In this respect he complained that the Court did not
indicate in what way the use of the word "Turk" or "Turkish" was
capable per se of creating a climate of hatred or of disrupting public
peace. He also complained that the judgment gave no concrete examples
of any event having actually occurred by the end of October 1989 which
could have been regarded as a genuine disruption of public peace or a
disturbance of public order.
31. On 15 February 1991 the Court of Cassation rejected the appeal.
The Court found that the judgment of the Court of Appeal had been
sufficiently reasoned.
B. The relevant domestic law
32. Article 192 of the Greek Penal Code provides:
"Any person who publicly and in any manner whatsoever provokes
or incites the citizens to mutual assault or discord and thus
disrupts public peace, shall be liable to imprisonment for a term
not exceeding two years, unless another provision imposes a more
severe sentence."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
33. The Commission has declared admissible the applicant's complaint
that his conviction of having disrupted public peace, by distributing
printed material referring to the Moslem population of Western Thrace
as "Turks", violated his rights under Articles 9, 10, 11 and 14
(Art. 9, 10, 11, 14) of the Convention. As his conviction involved his
writings, the Commission considered that the main issue arose under
Article 10 (Art. 10) of the Convention.
B. Point at issue
34. The Commission is called upon to consider whether or not there
has been a violation of Article 10 (Art. 10) of the Convention.
C. As regards Article 10 (Art. 10) of the Convention
35. The relevant parts of Article 10 (Art. 10) of the Convention
provide as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authorities and regardless of frontiers ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime ...".
36. In the present case the Commission finds that there has been an
interference by a public authority with the exercise of the applicant's
freedom of expression within the meaning of Article 10 (Art. 10). This
interference resulted from his conviction and sentence to 18 months'
imprisonment by the Criminal Court of Rhodopi.
37. The Commission also finds that the interference was in accordance
with law as it was based on Article 192 of the Greek Penal Code. The
restriction furthermore pursued a legitimate aim covered by Article 10
para. 2 (Art. 10-2) of the Convention, namely the prevention of
disorder.
38. Accordingly, the key issue in the present case which remains to
be examined is whether the restriction complained of could reasonably
be considered to be "necessary in a democratic society" as required by
Article 10 para. 2 (Art. 10-2) of the Convention.
39. The applicant stresses the key role played by freedom of
expression in a democratic society and considers that the importance
of this freedom is even greater for an elected representative whose
mandate is to act as a spokesman for the opinions and concerns of his
constituents.
40. The applicant considers that his conviction and sentence
constituted a reprisal for his assertion of his Turkish ethnic origin.
He submits that the use of the word "Turks" to identify the Moslems of
Western Thrace is frequent even in schoolbooks, in administrative
documents and in judgments. He further submits that there was no
evidence of disruption of public order. There was thus no pressing
social need for his conviction and sentence.
41. The applicant concludes that his conviction and sentence were a
disproportionate interference with his freedom of expression.
42. The Government stress that freedom of expression has limits which
the applicant overstepped. The Treaty of Lausanne refers to "Moslems"
and not to "Turks". The applicant deliberately chose to use expressions
which aimed at creating feelings of hatred and hostility within the
Moslem community towards the Greek Christians and, therefore, abused
his right to freedom of expression.
43. The Government further submit that the applicant's conviction and
sentence were decided by the competent domestic courts, which found him
guilty of the offence provided for in Article 192 of the Greek Penal
Code, and argue that every conviction which is decided in accordance
with law is compatible with Article 10 para. 2 (Art. 10-2) of the
Convention.
44. The Government thus find, having regard to the State's margin of
appreciation, that the interference with the applicant's right to
freedom of expression was necessary in a democratic society within the
meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
45. The Commission recalls that the adjective "necessary", within the
meaning of Article 10 para. 2 (Art. 10-2), is not synonymous with
"indispensable" or as flexible as "reasonable" or "desirable", but
implies the existence of a pressing social need (see, inter alia, Eur.
Court H.R., Barthold judgment of 25 March 1985, Series A no. 90,
pp. 24-25, para. 55).
46. It is true that the initial responsibility for securing
Convention rights and freedoms lies with each Contracting State.
Accordingly, Article 10 para. 2 (Art. 10-2) of the Convention leaves
the Contracting State a certain margin of appreciation in assessing
whether such a need exists, but this margin goes hand in hand with a
European supervision, embracing both the law and the decisions applying
it, even those given by independent courts (see, inter alia, Eur. Court
H.R., Observer and Guardian judgment of 26 November 1991, Series A
no. 216, p. 30, para. 59).
47. The Convention organs' task, in exercising their supervisory
function, is not to take the place of the competent national
authorities but rather to review under Article 10 (Art. 10) the
decisions they delivered pursuant to their power of appreciation. This
does not mean that the supervision is limited to ascertaining whether
the respondent State exercised its discretion reasonably, carefully and
in good faith;
what the Convention organs have to do is to look at the interference
complained of in the light of the case as a whole and determine whether
it was proportionate to the legitimate aim pursued and whether the
reasons adduced by the national authorities to justify it were relevant
and sufficient (Eur. Court H.R., Barthold judgment, op. cit.).
48. In doing so, the Convention organs have to satisfy themselves
that the national authorities did apply standards which were in
conformity with the principles embodied in Article 10 (Art. 10) and,
moreover, that they based themselves on an acceptable assessment of the
relevant facts (Eur. Court H.R., Jersild judgment of 23 September 1994,
Series A no. 298, para. 31).
49. In the present case, the Commission has therefore examined
whether there was a pressing social need to convict and sentence the
applicant for having distributed printed material referring to the
Moslem population of Western Thrace as "Turks" and whether the
conviction and sentence were proportionate to the aim pursued.
50. The Commission recalls that freedom of expression constitutes one
of the essential foundations of a democratic society, one of the basic
conditions for its progress and for the development of everyone.
Subject to paragraph 2 of Article 10 (Art. 10-2), it is applicable not
only to "information" or "ideas" that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to
those that shock, offend or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no "democratic society" (see,
inter alia, Eur. Court H.R., Vereinigung Demokratischer Soldaten
Österreichs and Gubi judgment of 19 December 1994, to be published in
Series A no. 302, para. 36).
51. This being so, the Commission emphasises the crucial importance
of freedom of expression for an elected representative of the people
who represents his electorate, draws attention to their preoccupations
and defends their interests (Eur. Court H.R., Castells judgment of
23 April 1992, Series A no. 236, p. 22, para. 42). Accordingly, the
institution of criminal proceedings for statements made in the context
of an electoral campaign is justified only insofar as it is not
possible for the State to react in a suitable and adequate manner by
way of the means usually available to democratic States (see Castells
v. Spain, Comm. Report 8.1.91, para. 69, Eur. Court H.R., op. cit.).
52. In the present case, the Commission notes that the applicant has
been convicted and sentenced for calling "Turks" the people belonging
to the Moslem minority of Western Thrace.
53. The Commission assumes that, in order to avoid rifts between the
Christian and Moslem population of Western Thrace and to maintain their
peaceful coexistence, moderation in political discussions may be
desirable. However, it cannot find that, in the circumstances of this
case, and in the absence of clear elements of incitement to violence,
the imposition of a prison sentence for the use in public, namely in
an election campaign, of the term "Turk" in respect of the Moslem
minority in that area can reasonably be regarded as a "necessary"
measure in a democratic society.
54. Accordingly, the Commission concludes that the reasons advanced
by the Government do not suffice to show that the interference with the
applicant's freedom of expression was proportionate to the legitimate
aim pursued. Thus it was not justified under Article 10 para. 2
(Art. 10-2) of the Convention.
CONCLUSION
55. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 10 (Art. 10) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
11 July 1991 Introduction of application
27 September 1991 Registration of application
Examination of admissibility
3 May 1993 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
8 and 29 October 1993 Government's observations
18 November 1993 Applicant's observations in reply
14 April 1994 Commission's decision to hold a hearing
20 June 1994 President's grant of legal aid
1 July 1994 Hearing on admissibility and merits
1 July 1994 Commission's decision to declare
application in part admissible and in part
inadmissible
8 July 1994 Commission's adoption of text of decision
on admissibility
Examination of the merits
13 July 1994 Decision on admissibility transmitted to
parties.
3 December 1994 Examination of state of proceedings
4 April 1995 Adoption of Report
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