GRIGORIADES v. GREECE



                 EUROPEAN COMMISSION OF HUMAN RIGHTS

                      Application No. 24348/94

                       Panayiotis Grigoriades

                               against

                               Greece

                      REPORT OF THE COMMISSION

                      (adopted on 25 June 1996)

                          TABLE OF CONTENTS

                                                                 Page

I.   INTRODUCTION

     (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . .1

     A.    The application

           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . .1

     B.    The proceedings

           (paras. 5-10) . . . . . . . . . . . . . . . . . . . . . .1

     C.    The present Report

           (paras. 11-15). . . . . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 16-27). . . . . . . . . . . . . . . . . . . . . . . . .3

     A.    The particular circumstances of the case

           (paras. 16-26). . . . . . . . . . . . . . . . . . . . . .3

     B.    Relevant domestic law

           (para. 27). . . . . . . . . . . . . . . . . . . . . . . .8

III. OPINION OF THE COMMISSION

     (paras. 28-54). . . . . . . . . . . . . . . . . . . . . . . . .9

     A.    Complaints declared admissible

           (para. 28). . . . . . . . . . . . . . . . . . . . . . . .9

     B.    Points at issue

           (para. 29). . . . . . . . . . . . . . . . . . . . . . . .9

     C.    As regards Article 10 of the Convention

           (paras. 30-47). . . . . . . . . . . . . . . . . . . . . .9

     1.    Whether the interference was "prescribed by law"

           (paras. 32-36). . . . . . . . . . . . . . . . . . . . . .9

     2.    Whether the interference pursued a legitimate aim

           (paras. 37-39). . . . . . . . . . . . . . . . . . . . . 10

     3.    Whether the interference was "necessary

           in a democratic society"

           (paras. 40-46). . . . . . . . . . . . . . . . . . . . . 11

           CONCLUSION

           (para. 47). . . . . . . . . . . . . . . . . . . . . . . 12

     D.    As regards Article 7 of the Convention

           (paras. 48-51). . . . . . . . . . . . . . . . . . . . . 13

           CONCLUSION

           (para. 52). . . . . . . . . . . . . . . . . . . . . . . 13

     E.    Recapitulation

           (paras. 53-54). . . . . . . . . . . . . . . . . . . . . 13

DISSENTING OPINION OF Mr. F. MARTINEZ. . . . . . . . . . . . . . . 14

APPENDIX   :    DECISION OF THE COMMISSION AS TO THE

                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . 16

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 citizen, born in 1964 and resident in

Pentaplatanos Yiannitson. He was represented before the Commission by

Mr. I. Milonas, a lawyer practising in Athens.

3.   The application is directed against Greece. The respondent

Government were represented by their Agent, Mr. L. Papidas, President

of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),

Mr. F. Georgakopoulos, Senior Adviser (Paredros) of the Legal Advisory

Council of the State, and Mrs. F. Dedoussi, Legal Assistant (Dikastikos

Antiprosopos) of the Legal Advisory Council of the State.

4.   The case concerns the applicant's conviction for insulting the

army. The applicant invokes Articles 7 and 10 of the Convention.

B.   The proceedings

5.   The application  was introduced on 17 March 1994 and registered

on 7 June 1994.

6.   On 13 January 1995 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's observations were submitted on 19 April 1995,

after an extension of the time-limit fixed for this purpose. On

15 June 1995 the applicant submitted his observations in reply.

8.   On 4 September 1995 the Commission declared the application

admissible.

9.   The text of the Commission's decision on admissibility was sent

to the parties on 14 September 1995. The Government was invited to

produce a copy of the letter on the basis of which the applicant was

convicted. Both parties were invited to submit such further information

or observations on the merits as they wished. The Government submitted

a copy of the letter on 12 October 1995. The parties did not submit any

further observations.

10.  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

11.  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.  S. TRECHSEL, President

                H. DANELIUS

                C.L. ROZAKIS

                E. BUSUTTIL

                G. JÖRUNDSSON

                A.S. GÖZÜBÜYÜK

                A. WEITZEL

                J.-C. SOYER

                H.G. SCHERMERS

           Mrs. G.H. THUNE

           Mr.  F. MARTINEZ

           Mrs. J. LIDDY

           MM.  L. LOUCAIDES

                M.P. PELLONPÄÄ

                B. MARXER

                G.B. REFFI

                M.A. NOWICKI

                I. CABRAL BARRETO

                B. CONFORTI

                N. BRATZA

                I. BÉKÉS

                J. MUCHA

                D. SVÁBY

                G. RESS

                A. PERENIC

                C. BÎRSAN

                P. LORENZEN

                K. HERNDL

                E. BIELIUNAS

12.  The text of this Report was adopted on 25 June 1996 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.

13.  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.

14.   The Commission's decision on the admissibility of the

application is annexed hereto.

15.  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

16.  In the course of his military service, as a reserve officer on

probation, the applicant claims to have discovered a series of abuses

committed against the conscripts and to have come, as a result, in

collision with his superiors. Criminal and disciplinary proceedings

were instituted against him. The former ended with his acquittal. A

disciplinary penalty was, however, imposed on him and, as a result, he

had to serve additional time in the army.

17.  Considering that the extension of his military service was

illegal, the applicant refused to serve the additional days. He was

declared a deserter on 6 May 1989 and criminal charges were brought

against him. On 8 May 1989 the commander of the applicant's unit

received a letter in which the applicant explained his stance.

18.  The letter read as follows:

           (Original)

           "PROSOPIKI DILOSI

           Meta apo 2 oloklira chronia stratiotikis thitias san Dokimos Efedros Axiomatikos,

     eimai ipochreomenos na sas enimeroso, pos arnoumai tin paratasi tis thitias mou,

     meta  apo epivoli poinis gia tin iperaspisi ton dikaiomaton ton stratevmenon.  Tin

     theoro apo ti mehri simera ebiria mou, san ena meros tis sinolikoteris antilipsis gia ti

     katastoli tis eleftheris prosopikotitas kai tis diekdikisis ton Sintagmatikon dikaiomaton

     kai atomikon eleftherion. Pera apo to prosopiko kostos, genikotera, theoro aparadekti

     kai Antisigmatiki tin epivoli poinis stous stratevmenous neous kai poli perissotero

     malista otan prokeitai gia poini pou ehei shesi me tin pali ton neon anthropon gia to

     sevasmo ton ideologikon-koinonikon dikaiomaton tou anthropou kai tin iperaspisi tis

     prosopikotitas tous apo ton exeftelismo tis stratokratikis mihanis.  Meta apo 24 mines

     agonistikis stasis kai sineiditis thesis, apenanti se afto to choro, diatiro to dikaioma, alla

     kai to chreos sichronos, pros tin katefthinsi tis edraiosis  tis koinonikis dikaiosinis kai

     tin ipothesi tis irinis, perissotero apo kathe alli fora kai ehontas pliri sinidisi tis praxis

     mou, san ametaklita koinonika epivevlimenis, na KATAGGEILO me afto to tropo:

           Pos o stratos, einai enas mihanismos, pou antikeitai ston  anthropo kai stin

     koinonia kai antipragmatevetai apo ti fisi tou tin irini.

           Tora pia, eimai apolita vevaios, pos i diadikasia tou stratou, efthinetai gia

     eglimata kai epithetikes siberifores mesa sto koinoniko pedio, afou ehei diamorfosei

     psihologia vias, xepernontas, etsi tis ithikes kai psihikes antistasis kata tis vias.  O

     stratos exakolouthi na paramenei mia eglimatiki tropokratiki mihani, pou mesa apo to

     klima fovias kai katarakosis tis psihikis igias tou rizospastikou neou, stohevei

     xekathara, sti metatropi ton anthropon se exartimata mias exousiastikis mihanis, pou

     ftheirei tin anthropini fisi, allionei tis anthropines sheseis, apo sheseis filias kai agapis,

     se sheseis exartisis, mesa  apo mia ierarhia tropou, pou kathodigei enas aneleftheros

     katapiestikos kanonismos 20-I, mitroa fronimaton, klp. I alithia einai pos oi sinthikes

     diaviosis, pou epikratoun sto strato einai exontotika aparadektes kai kathe igiis morfi

     antistasis kai prospatheia gia dialogo haraktirizetai, dioketai kai odigeitai aniperaspista

     sti stratiotiki dikaiosini, ena epikindino thesmo, pou prepei na papsei na iparhei.  Kai

     ola afta para tis  proeklogikes exaggelies tou Ipourgeiou Ethnikis Aminas gia sevasmo

     stin prosopikotita tou stratevmenou, eno stin pragmatikotita simmetehei kai entharinei

     tetoiou idous katastaltikes diadikasies.  Etsi me afto ton tropo diamartirias, ego

     prosopika, alla kai oloi oi neoi pou niothoun to dikio na tous pnigei, gia tin katarrakosi

     tis zois tous, PALEVOUME:

           Na stamatisoun oi dioxeis gia ti simmetohi se diadikasies, pou proothoun tin

     koinoniki dikaiosini, tin eirini kai to dikaioma na ehoume gnomi gia zitimata pou

     aforoun ti zoi mas.  Na iparxei i politiki voulisi tou ipourgeiou, gia ousiastiko elencho

     tis stratokratikis exousias kai na diokontai oi pragmatika ipefthinoi foreis, aftis tis

     aftarhikis antilipsis kai ohi na kaliptontai sistimatika.  Na katohirothei apofasistika apo

     tin politeia, o sevasmos tis protovoulias kai tis koinonikis epilogis ton neon, katargontas

     kathe eidous poines gia aftes tis diekdikiseis.   Kai ohi na arkeitai sta "sosialistika

     logia" kai sti sineheia, na akolouthei  tin praktiki tis exontosis. Na diakirixoume pos i

     katargisi afton ton aftarhikon thesmon, einai ipotheisi mias poliplevris kai polihronis

     palis, se prosopiko, politiko kai koinoniko epipedo.  Na stamatisoun oi diakriseis, oi

     evnoies kai oi exartiseis, methodefseis pou hrisimopoioun dieftharmenoi mihanismoi.

           Etsi meta apo tin ebeiiria mou afti, ehei anaptihthei mesa pou i eleftheri

     sineidisi, pou mou apagorevei na simmeteho sinenohika se afti tin eglimatiki

     diadikasia, opos pragmatonetai sti leitourgia kai sti domi, arnoumenos na foreso kato

     apo aftes tis proïpotheseis, apo edo kai mera ti stoli.  Kati tetoio,  niotho pos tha

     eferne ton eafto mou se sinithisiaki krisi, antipetopi me ti leitourgia kai tin psihosnthesi

     mou, se prootheftika  galouhimenou anthropou.    I nea genia, tha antistathoume, na

     fortothoume tis adinamies kai na ginoume foreis tou stratioutikou katestimenou.  Gi'

     afto, i stasi mou afti, den einai nomimo na hreothei san lipotaxia i anipakoi, efoson

     einai aporroia themeliodon anthropinon dikaiomaton kai vrisketai se simfonia me tis

     diataxeis tou Ellinikou Sintagmatos.  Theoro ton eafto mou, oti parameno politis kai

     eleftheros anthropos, pou epidioke na meinei sinepis me ti sinidisi tou kai tin eleftheri

     voulisi pou pigazei apo afti. Theoro akoma, pos i  stasi mou kai i foni diamartirias,

     apenanti se afti tin exathliosi, einai i pio gnisia ekfrasi allileggiis kai sybarastasis, pros

     tous antirrisies sinidisis, giati pistevo akradanta, pos mono etsi pragmatonetai kai i pali

     gia tin koinoniki apeleftherosi kai irini."

           (Translation)

           "PERSONAL STATEMENT

           After two whole years of military service as cadet reserve

     officer, I am obliged to inform you that I object to the

     prolongation of my military service following a sentence imposed

     on me for defending the rights of soldiers. Judging from my

     experience to this day, I think that this forms part of a general

     approach intended to suppress freedom of personality and the

     vindication of constitutional rights and personal freedom. Apart

     from the personal cost, I generally consider that imposing a

     sentence on soldiers is inadmissible and unconstitutional, all

     the more so when such a sentence is related to the struggle of

     young people for respect for the ideological - social human

     rights of people and (their struggle) for defending their

     personality against the humiliations of the military mechanism.

     Having maintained for 24 months a fighting stance and a conscious

     position vis-à-vis this domain, I reserve a right, which is also

     a duty towards establishing social justice and peace, now more

     than ever and being fully aware of my actions which are

     imperatively dictated to me in the interests of society, to

     DENOUNCE by this means:

           That the army is a mechanism against man and society and,

     by its nature, contrary to peace.

           I am now absolutely certain that the process of military

     service is responsible for crimes and aggressiveness in society

     since it has created a psychology of violence, overcoming in this

     manner all moral and psychological resistance to violence. The

     army remains a criminal and terrorist mechanism which, by

     creating an atmosphere of intimidation and reducing to tatters

     the spiritual welfare of the radical youth, clearly aims at

     transforming people to mere parts of a mechanism of domination

     which ruins human nature and transforms human relations from

     relations of friendship and love to relations of dependence,

     through a hierarchy of fear guided by an illiberal and oppressing

     set of Standing Orders (No. 20-1), records of political beliefs,

     etc. The truth is that the living conditions in the army are

     unaccaptable to a point of being destructive and any healthy form

     of resistance and any effort towards dialogue are persecuted and

     brought defenceless before the military justice, a dangerous

     institution that should be abolished. All this happens despite

     the electoral announcements of the Ministry of National Defence

     concerning respect for the personality of the soldiers; in

     reality, the Ministry participates in and encourages such

     oppressive processes. Using this way of protesting, I myself and

     all young people who feel a deep sense of injustice because their

     life has been reduced to tatters, we FIGHT:

           To stop all forms of persecution for having participated in

     processes that promote social justice, peace and the right to

     have an opinion on issues that concern our life; for the Ministry

     to have the political will to control in a meaningful manner the

     military power and to persecute those who are really responsible

     for this authoritarianism, instead of systematically covering

     them up; for the State to establish once and for all respect for

     the initiatives and social choices of young people, by

     eliminating all kinds of sentences for such vindications. It

     should not content itself with "socialist vocabulary" and then

     follow the practice of destruction; to declare that the

     elimination of these authoritarian institutions is a matter of

     a multi-faceted and long struggle at a personal, political and

     social level; to put an end to discrimination, favouritism and

     dependency, all of these being methods used by corrupt

     mechanisms.

           Thus, following this experience of mine, I have developed

     a free conscience which prevents me from participating in and

     being an accomplice to this criminal process, as it is realised

     in its operation and structure, refusing from now on to wear

     under these circumstances my uniform. If I did, I feel that I

     would lead myself in a crisis of conscience, contrary to my way

     of operating and frame of mind as a man brought up with liberal

     ideas. We, the young generation, will resist any attempt to be

     burdened with weaknesses and become vehicles of the military

     establishment. This is why my stance cannot be lawfully

     considered to be desertion or insubordination, since it stems

     from fundamental human rights and is in conformity with the

     provisions of the Greek Constitution. I consider that I remain

     a citizen and a free man who sought to remain true to his

     conscience and the free will flowing from it. I also consider

     that my stance and the voicing of my protest against this

     humiliation is the most genuine expression of solidarity with and

     support for the conscientious objectors because I firmly believe

     that this is how the struggle for social liberation and peace is

     carried out."

19.  Considering that the content of the letter insulted the army, the

commander instituted new criminal proceedings against the applicant

under Article 74 of the Army Criminal Code. On 12 May 1989 the

applicant presented himself before the investigating officer, a member

of the army judicial corps, who remanded him in custody for desertion.

20.  The applicant was tried on 27 June 1989 by the Permanent Army

Court (Diarkes Stratodikio) of Ioannina for the offences of desertion

and insulting the army. At the outset of the trial, the defence

questioned the constitutionality of the second charge, on the ground

that the relevant criminal provision was not lex certa and the

expression of criticism could not be considered to constitute an

insult. The defence's preliminary exception was rejected by the court

which proceeded to hear witnesses. One of the witnesses, a fellow

reserve officer on probation, testified that on 10 May 1989 the

applicant had given him a copy of the letter he had sent to the

commander of their unit.

21.  At the end of the hearing the president of the court formulated

a series of questions which the members of the court had to address

before deciding on the applicant's guilt. The questions relating to the

insult charge read as follows:

a)   "Did the accused commit the offence of insulting the Greek

     army when he addressed on 10 May 1989, while he was a

     reserve officer on probation, a two-page typed personal

     declaration to the commander of the X unit, which came to

     the knowledge of the latter on the same day and which

     contained, inter alia, the following phrases contemptuous

     and disparaging for the authority of the army: '... The

     army is a mechanism against man and society .... the army

     remains a criminal and terrorist mechanism which, by

     creating an atmosphere of intimidation and reducing to

     tatters the spiritual welfare of the radical youth, clearly

     aims at transforming people to mere parts of a mechanism of

     domination which ruins human nature and transforms human

     relations from relations of friendship and love to

     relations of dependence, through a hierarchy of fear guided

     by an illiberal and oppressing set of Standing Orders (No.

     20-1), records of political beliefs, etc ...... '. Did he

     willingly insult in this manner the Greek Army as a

     constitutionally entrenched institution of the Nation?"

b)   "..... (did the applicant act) in the mistaken but good

     faith belief that he was engaging in permissible criticism,

     in accordance with Article 14 of the Constitution currently

     in force?"

22.  The court, by unanimous vote, answered the first question

affirmatively and the second negatively. The applicant was found guilty

of desertion and insulting the army. Taking into account the fact that

the applicant was a first offender, the court imposed on him a sentence

of one year and eight months imprisonment for the first offence and a

sentence of three months imprisonment for the second offence. The

applicant was ordered to serve a global sentence of one year and

ten months.

23.  The applicant's appeal was heard by the Courts-Martial Appeal

Court (Anatheoritiko Dikastirio) on 5 September 1989. The court quashed

the applicant's conviction for desertion. However, it confirmed, by

three votes to two, his conviction for insulting the army, having

previously rejected the defence's objection as to the

unconstitutionality of the relevant provision. A sentence of

three months imprisonment was imposed on the applicant on the ground

that he was a first time offender. The applicant was immediately

liberated, the time spent in detention on remand having counted against

his sentence.

24.  On 20 September 1989 the applicant appealed in cassation on the

ground that Article 74 of the Army Criminal Code had not been correctly

interpreted and applied in his case. He argued, inter alia, that

general criticism of the army cannot be considered to constitute an

insult. He also claimed that the provision violated the Constitution,

because of its vagueness, and could not be considered lex certa and,

furthermore, introduced an impermissible limitation of freedom of

expression.

25.  His appeal was heard by the Sixth Chamber of the Court of

Cassation (Arios Pagos) on 12 March 1991. On 26 June 1991 the Chamber

decided to submit the case to the Plenary, having considered, by

three votes to two, that Article 74 of the Army Criminal Code did not

violate the Constitution and that it had been correctly applied in the

applicant's case.

26.  In a decision issued on 22 September 1993 the Plenary considered

that Article 74 of the Code described in a sufficiently circumscribed

manner the elements of the offence which were the insult and the

intention of the culprit. Elaborating thereon, the Court found that

     "(t)he concept of 'insult' includes every show of contempt

     by which injury is brought to bear on the esteem and

     respect for and the repute of the protected value. To

     qualify as insult, a manifestation must bear contempt,

     taunting and denigration; simply calling into question the

     protected value is not sufficient. This value is the army

     and, more in particular, not the land or air forces and the

     navy, but the army in its entirety as an idea and an

     institution entrusted with the defence of the freedom and

     independence of the country and the necessary training of

     the Greeks who can bear arms. Article 74 of the Army

     Criminal Code does not specify the nature of the insult nor

     the manner in and means by which the insult is brought

     about, as it was not the intention of the legislator to

     criminalise insults of a certain nature or committed in a

     certain manner or by certain means. Every insult of the

     army by a member of the armed forces is criminalised. This

     does not create any uncertainty as to the elements of the

     offence. Any further specification would have limited the

     scope of the criminal prohibition, which the legislator did

     not intend. Article 14 of the Constitution, which protects

     the freedom of opinion, does not prevent in any way the

     legislator from criminalising every instance of insulting

     the army by a member of the armed forces. The protection of

     Article 14 is subject to limitations provided by the law

     ....."

     In light of all the above, the Court upheld the applicant's

conviction.

B.   Relevant domestic law

27.  Article 74 of the Army Criminal Code provides the following:

           (Original)

           Prosbolitis sinaias i ton straton

           "Stratistikos ostis prosvaliei tin sinaian ton straton i siakritikon

     sima tis sioikiseos anton, timoreitai me philakisin tonlaxiston eis minon, ean seinai

     aisiomatikos, kai me ekptosin."

           (Translation)

           Insulting the flag or the army

           "A member of the armed forces who insults the flag, the

     army or an emblem of its command is punished with imprisonment

     of at least six months. If he is an officer, he is also deprived

     of his rank."

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

28.  The Commission has declared admissible the applicant's complaints

that his conviction constituted an unjustified interference with his

right to freedom of expression and that Article 74 of the Army Criminal

Code for a breach of which he was convicted was not lex certa.

B.   Points at issue

29.  The issues to be determined are

     - whether there has been a violation of Article 10 (Art. 10) of

the Convention and

     - whether there has been a violation of Article 7 (Art. 7) of the

Convention.

C.   As regards Article 10 (Art. 10) of the Convention

30.  Article 10 (Art. 10) of the Convention, insofar as relevant,

provides 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

     authority 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, for the protection of health

     or morals, for the protection of the reputation or rights of

     others, for preventing the disclosure of information received in

     confidence, or for maintaining the authority and impartiality ofthe

     judiciary."

31.  The Commission considers that the applicant's conviction to

three months' imprisonment for having insulted the army constitutes an

interference with his right to freedom of expression. This is not

disputed by the parties. Such an interference would be a violation of

Article 10 (Art. 10) of the Convention, if it was not "prescribed by

law", if it did not pursue one of the legitimate aims enumerated in the

second paragraph of that provision or if it was not "necessary in a

democratic society" for one of these aims.

1.   Whether the interference was "prescribed by law"

32.  The applicant submits that the interference is not "prescribed

by law" because Article 74 of the Army Criminal Code is not lex certa.

Its overbroad wording and the absence of any relevant case-law result

in legal uncertainty. The case-law of the army courts referred to by

the Government consists of three decisions which have not contributed

in any manner to the clarification of the meaning of the provision,

while the case-law of the Court of Cassation under Article 181 of the

Criminal Code is irrelevant.

33.  The Government submit that Article 74 of the Army Criminal Code

is lex certa. The wording of the provision is sufficiently clear to

enable all persons affected to regulate their conduct. Its meaning

becomes even clearer when read in conjunction with the case-law of the

army courts and the extensive case-law of the Court of Cassation

interpreting Article 181 of the Criminal Code which provides for the

related offence of insulting a public authority or a national emblem.

34.  The Commission recalls that, in accordance with the Court's case-

law, a norm cannot be regarded as a "law" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention unless it is

formulated with sufficient precision to enable the citizen to regulate

his conduct: he must be able - if need be with appropriate advice - to

foresee, to a degree that is reasonable in the circumstances, the

consequences which a given action may entail (Eur. Court H.R., Sunday

Times judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).

35.  The Commission notes that the aim of Article 74 of the Army

Criminal Code is to protect a State institution, the army, as opposed

to a person, from insults. However, it does not consider that this in

itself renders the provision "imprecise" within the meaning of the

Convention. As for the rest, Article 74 does not differ in any manner

from other statutory provisions which render "insulting" a criminal

offence. It follows that the applicant should have been able to

regulate his conduct on the basis of the statutory provision itself and

he cannot rely on the scarcity of published case-law to claim that he

was unable to foresee the consequences which his sending of the letter

might entail.

36.  The Commission therefore considers that the requirement laid down

in Article 10 para. 2 (Art. 10-2) that any interference with the right

to freedom of expression must be "prescribed by law" has been complied

with in this case.

2.   Whether the interference pursued a legitimate aim

37.  The applicant has not made any submissions in this connection.

38.  The Government contend that the aim of Article 74 of the Army

Criminal Code is to protect the authority of the army as an

institution, so as to enable it to accomplish its mission, which is to

protect society from external or internal threats. As a result, the

interference was aimed at protecting national security, territorial

integrity and public safety.

39.  The Commission considers that the applicant's conviction under

Article 74 of the Army Criminal Code pursues a legitimate aim under

Article 10 para. 2 (Art. 10-2) of the Convention to the extent that it

was imposed to maintain discipline in the army. The Commission has

examined the decisions of the army courts and of the Court of Cassation

and considers that such an element was present in the applicant's

conviction. It follows that the interference with the applicant's right

to freedom of expression pursued a legitimate aim under the Convention,

namely to maintain order in the armed forces (Eur. Court H.R., Engel

and others judgment of 8 June 1976, Series A no. 22, p. 41; para. 98;

Vereinigung Demokratischer Soldaten Österreichs and Gubi judgment of

19 December 1994, Series A no. 302, p. 16, para. 32 and p. 19,

para. 47).

3.   Whether the interference was "necessary in a democratic society"

40.  The applicant further argues that his conviction was not

necessary in a democratic society, as the contents of the letter at

issue did not go beyond the limits of permissible criticism which are

particularly wide in the army context where human rights risk being

subjected to various limitations. Finally, the letter was not addressed

to the press and was written when the applicant was informed that he

had been charged with desertion, a crime of which he was finally

acquitted.

41.  The Government contend that the interference was necessary. They

stress the need to protect the authority of the army, the abusive terms

used in the letter and the possibility that the contents of the letter

would become widely known, since the applicant had given a copy to one

of his colleagues. They also argue that the penalty was rather lenient

and stress in this connection that the applicant himself did not

request a suspended sentence, having obviously preferred the solution

adopted by the court of appeal, according to which the applicant's

provisional detention was counted against his sentence. Given the wide

margin of appreciation enjoyed by the national authorities in this

field, the Government argue that the applicant's conviction was

necessary in a democratic society in the interests of national

security, territorial integrity and public safety.

42.  The Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need". The Contracting States have a certain margin

of appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision, embracing both the law and

the decisions applying it, even those given by independent courts. The

interference complained of has to be looked at in the light of the case

as a whole, and it has to be determined whether it was "proportionate

to the legitimate aim pursued" and whether the reasons adduced by the

national authorities to justify it are "relevant and sufficient", due

regard being had to the importance of freedom of expression in a

democratic society (see Eur. Court H.R., Observer and Guardian judgment

of 26 November 1991, Series A no. 216, p. 30, para. 59).

43.  The Commission further recalls that freedom of expression is also

applicable to "information" or "ideas" that offend, shock or disturb

the State or any section of the population. Such are the demands of

that pluralism, tolerance and broadmindedness without which there is

no "democratic society". The same is true when the persons concerned

are servicemen, because Article 10 (Art. 10) applies to them just as

it does to other persons within the jurisdiction of the Contracting

Parties. However, the proper functioning of an army is hardly

imaginable without legal rules designed to prevent servicemen from

undermining military discipline, for example by writings (Vereinigung

Demokratischer Soldaten Österreichs and Gubi judgment, p. 17, para.

36).

44.  Finally, the Commission recalls that imposing a criminal penalty

on a person for insulting a State institution, as opposed to a public

official, is not in itself incompatible with the Convention, if this

is done to protect public order (Eur. Court H.R., Castells judgment of

23 April 1992, Series A no. 236, p. 24, para. 46). However, the limits

of permissible criticism are wider with regard to the various arms of

the executive than in relation to a private citizen (see, mutatis

mutandis, Eur. Court H.R., Castells judgment, p. 23, para. 46, in

conjunction with the Thorgeir Thorgeirson judgment of 25 June 1992,

Series A no. 239 p. 27, para. 64).

45.  Applying these general principles to the circumstances of the

case, the Commission notes that the applicant was convicted for having

addressed to one of his superior officers a letter in which he

criticised the army and that he was given a non-suspended sentence of

three months' imprisonment. The Commission does not disregard the fact

that the letter contained particularly harsh terms. However, it did not

contain any insults for individual members of the armed forces and its

aim was to address a number of concrete problems facing army

conscripts, i.e. to raise a matter of public concern. Moreover, the

letter was addressed to a particular officer and not to the press or

even to the applicant's fellow conscripts at large. As a result and

although the letter was seen by at least one other conscript, its

potential for undermining military discipline was insignificant.

46.  In the light of the above and taking into consideration the

nature of the penalty imposed, the Commission finds that the

interference with the applicant's right to freedom of expression was

not "necessary in a democratic society" for the prevention of disorder

in the army. It was disproportionate to the legitimate aim pursued and

therefore not justified under paragraph 2 of Article 10 (Art. 10-2) of

the Convention.

     CONCLUSION

47.  The Commission concludes, by 28 votes to 1, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention.

D.   As regards Article 7 (Art. 7) of the Convention

48.  Article 7 para. 1 (Art. 7-1) of the Convention, insofar as

relevant, provides as follows:

     "No one shall be held guilty of any criminal offence on account

     of any act or omission which did not constitute a criminal

     offence under national or international law at the time when it

     was committed. ..."

49.  The applicant argues that he could not have known that his

sending of the letter in question would have rendered him liable to

criminal prosecution because Article 74 of the Army Criminal Code is

not lex certa. The Government disagree. Both parties refer to their

submissions under Article 10 (Art. 10) of the Convention.

50.  The Commission recalls that Article 7 (Art. 7) requires that an

offence must be clearly defined in law. This condition is satisfied

where the individual can know from the wording of the relevant

provision and, if need be, with the assistance of the courts'

interpretation of it, what acts and omissions will make him liable

(Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A no. 260

A, p. 22, para. 52).

51.  The Commission has already considered that the wording of

Article 74 of the Army Criminal Code is sufficiently precise to have

enabled the applicant to predict that his sending of the letter might

have rendered him liable to criminal prosecution. It follows that there

was no breach of Article 7 (Art. 7) of the Convention.

     CONCLUSION

52.  The Commission concludes, unanimously, that in the present case

there has been no violation of Article 7 (Art. 7) of the Convention.

E.   Recapitulation

53.  The Commission concludes, by 28 votes to 1, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention (para. 47).

54.  The Commission concludes, unanimously, that in the present case

there has been no violation of Article 7 (Art. 7) of the Convention

(para. 52).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)

                                                       (Or. français)

                OPINION DISSIDENTE DE M. F. MARTINEZ

     Malheureusement, je ne partage pas l'avis de la majorité de mes

collègues, lorsqu'ils trouvent que la peine imposée au requérant -

trois mois de prison - comme réaction à la lettre transcrite au par. 18

du rapport constitue une violation de son droit à la liberté

d'expression. Voici mes motifs.

     Prenons comme point de départ que la Commission accepte -

paras. 32 à 36 du rapport - que la punition était prévue par la loi

avec le grade de certitude requis au sens du deuxième paragraphe de

l'article 10 de la Convention. La conduite du requérant était donc

prévue par l'article 74 du Code criminel de l'armée, comme étant une

lex certa ; et ceci est réaffirmé par la Commission, aux paras. 50 à

52 du rapport, pour rejeter la violation de l'article 7 de la

Convention.

     Cela veut dire que ledit article 74 du Code criminel a été bien

appliqué et, par voie de conséquence, que la lettre du requérant est

bien une insulte à l'armée (cf le texte cité au par. 27 du rapport).

Ainsi, tout le problème est réduit à la question de savoir si la

punition du requérant a été proportionnée à son insulte. C'est la

méthode suivie par la majorité de la Commission, bien qu'elle trouve

hors de proportion la peine que je considère pour ma part admissible.

     A mon avis, il faut tenir compte de la lettre et des

circonstances. Une lettre publiée dans la presse par une personne qui

n'appartient pas à l'armée, n'est pas la même chose que la même lettre

adressée par un officier à son supérieur dans la hiérarchie militaire.

     Dans le premier cas, la lettre pourrait peut-être tomber dans le

domaine de la critique que toute société démocratique doit accepter ;

dans des circonstances de l'espèce c'est une insulte qui compromet la

discipline.

     La discipline est dans l'essence même de l'armée ; une armée sans

discipline est inconcevable. On pourrait être pour ou contre l'armée ;

mais puisque les Etats ont des armées, ils ont le droit de sauvegarder

leur discipline.

     Pour cela les Etats ont besoin d'une marge d'appréciation assez

large. Il n'est pas difficile à comprendre que pour maintenir la

discipline, il faut punir les actes contraires.

     Je ne pense pas que pour réprimer une insulte à l'armée de la

part d'un officier, adressé par écrit - c'est-à-dire réflexion faite -

à son supérieur militaire, la peine de trois moins de prison soit

disproportionnée. Je pense que les juridictions internes sont mieux

placées que les membres de la Commission pour évaluer les

circonstances, et qu'en l'espèce la punition ne semble pas du tout

exagérée.

     Le rapport de la Commission donne beaucoup de poids au fait que

le requérant est condamné à de la prison ferme ; mais je voudrais

signaler que d'après le Gouvernement il aurait pu demander un sursis,

mais qu'il a préféré imputer la peine sur sa détention préventive (cf

par. 41 du Rapport).

 

Full & Egal Universal Law Academy