EUROPEAN COMMISSION OF HUMAN RIGHTS
Applications Nos. 23372/94, 26377/94 and 26378/94
Dimitrios Larissis, Savvas Mandalaridis and Ioannis Sarandis
against
Greece
REPORT OF THE COMMISSION
(adopted on 12 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-14) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 15-19). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-42) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 20-41). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(para. 42). . . . . . . . . . . . . . . . . . . . 11
III. OPINION OF THE COMMISSION
(paras. 43-105). . . . . . . . . . . . . . . . . . . . 13
A. Complaints declared admissible
(para. 43). . . . . . . . . . . . . . . . . . . . 13
B. Points at issue
(para. 44). . . . . . . . . . . . . . . . . . . . 13
C. As regards Article 9 of the Convention
(paras. 45-82). . . . . . . . . . . . . . . . . . 13
1. Whether the interference was "prescribed by law"
(paras. 47-50). . . . . . . . . . . . . . . . . . 14
2. Whether the interference pursued a legitimate aim
(paras. 51-54). . . . . . . . . . . . . . . . . . 14
3. Whether the interference was "necessary in a democratic
society"
(paras. 55-82). . . . . . . . . . . . . . . . . . 15
i. The conviction of the second applicant for the
proselytism of the Bairamis family and their neighbours and
the conviction of the second and third applicants for the
proselytism of A. Zounara
(paras. 72-74). . . . . . . . . . . . . . . . . . 18
CONCLUSION
(paras. 75-76). . . . . . . . . . . . . . . . . . 19
ii. The conviction of the first and second applicants forthe
proselytism of airman G. Antoniadis, the conviction of
the first and third applicants for the proselytism of
airmen A. Kokkalis and N. Kafkas
(paras. 77-80). . . . . . . . . . . . . . . . . . 19
CONCLUSION
(paras. 81-82). . . . . . . . . . . . . . . . . . 20
D. As regards Article 7 of the Convention
(paras. 83-86). . . . . . . . . . . . . . . . . . 20
CONCLUSION
(para. 87). . . . . . . . . . . . . . . . . . . . 21
E. As regards Article 10 of the Convention
(paras. 88-90). . . . . . . . . . . . . . . . . . 21
CONCLUSION
(para. 91). . . . . . . . . . . . . . . . . . . . 21
F. As regards Article 14 of the Convention in conjunction
with Article 9 of the Convention
(paras. 92-95). . . . . . . . . . . . . . . . . . 21
CONCLUSION
(paras. 96-97). . . . . . . . . . . . . . . . . . 22
G. Recapitulation
(paras. 98-105) . . . . . . . . . . . . . . . . . 22
PARTIALLY CONCURRING AND PARTIALLY DISSENTING
OPINION OF Mrs. J. LIDDY. . . . . . . . . . . . . . . . . . 24
PARTIALLY DISSENTING OPINION OF MM. H.G. SCHERMERS,
C.L. ROZAKIS, M.A. NOWICKI, B. CONFORTI AND N. BRATZA . . . 25
PARTIALLY DISSENTING OPINION OF Mr. F. MARTINEZ
JOINED BY Mrs. G.H. THUNE AND MM. E. BUSUTTIL,
J.-C. GEUS AND A. PERENIC . . . . . . . . . . . . . . . . . 27
APPENDIX I: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 28
APPENDIX II: EXTRACTS FROM THE ORIGINAL GREEK TEXT
OF THE COURT JUDGMENTS . . . . . . . . . . . 41
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 applicants are Greek citizens, born in 1949, 1948 and 1951
respectively and resident in Tanagra Viotias, Agria Volou and Kamatero
Attikis respectively. They were represented before the Commission by
Prof. Dr. J.W. Montgomery, a barrister practising in London,
Mr. G. Patsaouras, a lawyer practising in Athens, and Mr. P. Diamond,
a barrister practising in London.
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),
Dr. P. Kamarineas, Member (Simvulos) of the Legal Advisory Council of
the State, Mr. M. Apessos, Senior Adviser (Paredros) of the Legal
Advisory Council of the State, and Mrs. K. Grigoriu, Legal Assistant
(Dikastikos Antiprosopos) of the Legal Advisory Council of the State.
4. The case concerns the applicants' conviction for proselytism.
The applicants invoke Articles 7, 9, 10 and 14 of the Convention.
B. The proceedings
5. Application No. 23372/94 was introduced on 28 January 1994 and
registered on 2 February 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 22 May 1995 after
an extension of the time-limit fixed for this purpose. The applicant
replied on 19 July 1995.
8. Applications Nos. 26377/95 and 26378/95 were introduced on
28 January 1994 and registered on 1 February 1995.
9. On 3 April 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
two applications to the respondent Government and to invite the parties
to submit written observations on their admissibility and merits.
10. The Government's observations were submitted on 7 June 1995. The
two applicants replied on 19 July 1995.
11. On 7 July 1995 the Commission granted the three applicants legal
aid for the presentation of their cases.
12. On 27 November 1995 the Commission ordered the joinder of the
three applications. It also declared the applications admissible.
13. The text of the Commission's decision on admissibility was sent
to the parties on 6 December 1995 and they were invited to submit such
further information or observations on the merits as they wished. The
applicants submitted additional observations on 23 January 1996. The
respondent Government did not.
14. 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
15. 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:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
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
16. The text of this Report was adopted on 12 September 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.
17. 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.
18. The Commission's decision on the admissibility of the
applications is annexed hereto.
19. 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
20. On 18 May 1992 the applicants, who are followers of the
Pentecostal Church, appeared before the Permanent Air-Force Court
(Diarkes Stratodikio Aeroporias) of Athens, composed of one officer
with legal training and four other officers. They were tried for
proselytism, under Article 4 of Law 1363/38, as amended by Law 1672/39,
allegedly committed against other members of the air-force and a number
of civilians, all of them followers of the Greek Orthodox Church.
21. The court heard a number of witnesses, among whom A. Kafkas and
I. Stamoulis. A. Kafkas testified that when his son, N. Kafkas, joined
the air-force he was Christian Orthodox. When he completed his military
service he was Pentecostal. N. Kafkas had served in Unit X under the
orders of the third applicant. A short while after N. Kafkas joined
Unit X, his behaviour changed. He stopped seeing his friends and used
to spend long periods of time in his room studying the Bible. When
asked by the witness, N. Kafkas said that he had met two officers who
were real Christians and used to study the Bible, as opposed to the
witness who was not a real Christian. The witness subsequently found
out that it had been the first applicant who had persuaded N. Kafkas
to stop wearing a cross. N. Kafkas brought back home from the barracks
his television and radio sets, because it was forbidden by the two
officers' religion to watch television and listen to the radio.
N. Kafkas also brought back home the books from which he used to study
to prepare for a set of examinations necessary for admission to
university. Instead he would read religious books and listen to taped
sermons, which the first and third applicants had given to him. Every
evening and every Sunday morning N. Kafkas used to leave his house in
order to meet the persons who had changed his religion. When his
parents followed him to the Pentecostal church, he left his home and
went to Athens. Twenty days later N. Kafkas returned home and to the
Orthodox Church. When asked by the witness, N. Kafkas said that the
first and third applicants had converted him to the Pentecostal Church.
They had taken advantage of their rank to exert pressure on him using
their special skills of persuasion. They would tell N. Kafkas that he
would be given leave of absence if he promised to visit their church.
When the witness left on a trip, N. Kafkas was reconverted to the
Pentecostal Church. The witness concluded that his son, N. Kafkas, had
no will of his own and always did as he was told by other members of
the Pentecostal Church.
22. I. Stamoulis, a retired air-force officer, testified that the
first and third applicants served under his orders when he was the
commander of Unit X. The second applicant did not. When asked by the
witness, both applicants accepted that they were followers of the
Pentecostal Church but claimed that they did not engage in proselytism.
However, various persons denounced to the witness the proselytising
activities of the first and third applicants. Th. Tsikas told him that
the two applicants used to choose airmen because they were more
vulnerable as a result of their age and that the two applicants took
advantage of their rank. A. Kafkas had called the witness on the phone
and had told him that the two applicants had converted his son,
N. Kafkas, while he was doing his military service. The witness was
convinced that N. Kafkas had been proselytised by the first and third
applicants because he used to work in the office where the two
applicants served as duty officers. The witness considered that the
first and third applicants were excellent officers. He did not know
what means they had used to proselytise. Neither did the previous
commander of the unit, whom the witness had asked.
23. The court also read the statement taken by the investigation
judge from N. Kafkas who had been summoned to appear as a prosecution
witness. According to the testimony of A. Kafkas, N. Kafkas could not
attend the hearing before the first instance court because his wife was
undergoing surgery on that day.
24. In a decision delivered on the day of the hearing the first
instance court rejected an exception raised by the defence as to the
unconstitutionality of the law on proselytism. The court found that no
issues could arise under the principle nullum crimen sine lege certa
as a result of the non-exhaustive enumeration in the criminal statute
of the means by which the intrusion on someone else's religious beliefs
may be brought about. The court further found the applicants guilty of
proselytism. More in particular, the court held in respect of the first
applicant the following:
"The accused, while he was a military officer, ..., serving
in Unit X, committed the offence of proselytism in the
military camp of this unit between November 1986 and
December 1987 by engaging in several acts which, however,
gave rise to a single, albeit continuing, breach of the
relevant criminal provision; acting with the aim of
intruding on and changing the religious beliefs of airman
G. Antoniadis, an Orthodox Christian who served in the same
unit, and abusing the trust which G. Antoniadis, as a
hierarchically subordinate, had in him, the accused tried
on approximately twenty occasions to persuade G. Antoniadis
to become a member of the sect of the Pentecostal Church by
engaging in discussions on theology with him in the course
of which the accused contested the correctness of the
teachings of the University department of theology
concerning God and the Orthodox dogma, encouraged
G. Antoniadis to read the Bible in the light of the
accused's own beliefs as a member of the Pentecostal
Church, questioned the holy traditions and recommended
G. Antoniadis to visit the church of the Pentecostal sect
in Athens.
Acting in the same capacity, the accused committed the
offence of proselytism between May 1987 and February 1988
by engaging in several acts which, however, gave rise to a
single, albeit continuing, breach of the relevant criminal
provision; acting with the aim of intruding on and changing
the religious beliefs of airman A. Kokkalis, an Orthodox
Christian who served in the same unit, the accused tried on
approximately thirty occasions to persuade A. Kokkalis to
become a member of the sect of the Church of Pentecost by
engaging, persistently and importunately, in discussions
with A. Kokkalis on the correctness of the accused's
beliefs as a member of the sect of the Pentecostal Church,
questioning the holiness of the Christian Orthodox Church,
inviting A. Kokkalis to listen to taped recordings on the
beliefs of the Pentecostal sect, taking advantage of the
trust inherent in a relationship between a subordinate and
a superior and of the naivety and inexperience of
A. Kokkalis, a person of young age, and telling him that in
the accused's church some persons started speaking foreign
languages under the effect of the Holy Power.
Acting in the same capacity, the accused committed the
offence of proselytism between spring 1989 and
18 August 1989 in the place mentioned above by engaging in
several acts which, however, gave rise to a single, albeit
continuing, breach of the relevant criminal provision;
acting with the aim of intruding on and changing the
religious beliefs of airman N. Kafkas, who served under his
orders in the same unit, and taking advantage of the trust
inherent in a relationship between a subordinate and a
superior, and of the naivety and inexperience of the young
man, the accused tried to persuade N. Kafkas to become a
member of the sect of the Church of Pentecost by
continually, persistently and importunately expounding on
his beliefs concerning the sect of the Pentecostal Church,
continually reading and explaining to N. Kafkas the Bible
in the light of the accused's own beliefs and providing
N. Kafkas with copies of a publication of his dogma
entitled 'Christianity'. The accused succeeded in
converting N. Kafkas by taking advantage of the latter's
inexperience concerning theological matters and the
influence he had on N. Kafkas because of his position and
rank."
25. The court also found that the first applicant had engaged in
proselytism vis-à-vis another airman, S. Voikos.
26. In respect of the second applicant the court held the following:
"The accused, while he was a military officer, ..., serving
in Unit X, committed the offence of proselytism in the
military camp of this unit between November 1986 and
December 1987 by engaging in several acts which, however,
gave rise to a single, albeit continuing, breach of the
relevant criminal provision; taking advantage of the
authority he could exercise because of the difference in
rank on airman G. Antoniadis, who served in the same unit,
the accused tried on approximately seven occasions and on
dates which have not been specified to intrude on and
change the religious beliefs of G. Antoniadis by means of
skilful discussions with him concerning religion and
pressing exhortations; the accused urged G. Antoniadis to
study, because of his youth, nothing but the Gospel where
G. Antoniadis would find the truth which differed from the
Orthodox dogma; he also tried to convince G. Antoniadis by
means of a skilful interpretation of extracts from the Holy
Gospel, in accordance with the beliefs of the sect of the
Pentecost, that the Orthodox faith is not correct, that
G. Antoniadis should adopt the beliefs of the accused,
urging him at the same time in a pressing manner to visit
while on leave the church of the Pentecostal sect in
Athens.
The accused also committed the offence of proselytism in
Volos in 1988 by engaging in several acts which, however,
gave rise to a single, albeit continuing, breach of the
relevant criminal provision; taking advantage of the
inexperience and intellectual weakness of A. Zounara, he
tried on several occasions and on dates which have not been
specified to intrude on and change the religious beliefs of
A. Zounara engaging in a skilful analysis of the beliefs of
the sect of the Pentecost and of their difference from the
Orthodox faith and elaborating on the correctness of the
former; he tried persistently to convince A. Zounara that
the followers of the Pentecostal Church bore marks given to
them by God, that they could prophesy the future, that
A. Zounara and her children were possessed by the devil,
that the devil was fighting to keep control over her, that
A. Zounara worshipped idols and daemons and that the
Pentecostal church was the holder of the truth; the accused
also urged A. Zounara in a pressing manner to get baptised
and become a member of the Pentecostal Church.
The accused also committed the offence of proselytism in
Volos on a date which has not been specified towards the
beginning of June 1989; the accused, having been summoned
by I. Bairamis, another officer, went to the house of
A. Bairamis, I. Bairamis's brother, where H. Apostolidis,
the brother-in-law of I. and A. Bairamis, a follower of the
sect of the Pentecostal Church, was in a delirious state
under the influence of his religious beliefs foaming,
invoking Christ's name and saying 'thank you Christ,
because I have known the truth, I see the devil in my
wife's and my children's faces'; his mere appearance having
calmed H. Apostolidis, the accused skilfully took advantage
of the above-mentioned incident and tried to intrude on and
change the religious beliefs of A. Bairamis, M. Bairami,
S. Bairami, E. Bairami, who were present during the
incident and had been impressed by it, and of a number of
neighbours who gathered afterwards; the accused preached to
them elaborating on the beliefs of the sect of the
Pentecostal Church, telling them, among others, that their
church was the correct one and not the Orthodox religion,
that in 1992 the world would come to an end and the church
would be 'captured'; the accused urged them persistently
and importunately to believe in the true Christ and told
them that, by virtue of being Christian Orthodox, they had
taken sides with the devil."
27. In respect of the third applicant the court held the following:
"The accused, while he was a military officer, ..., serving
in Unit X, committed the offence of proselytism in the
military camp of this unit between May 1987 and
February 1988 by engaging in several acts which, however,
gave rise to a single, albeit continuing, breach of the
relevant criminal provision; acting with the aim of
intruding on and changing the religious beliefs of airman
A. Kokkalis, an Orthodox Christian who served in the same
unit, and taking advantage of the trust inherent in a
relationship between a subordinate and a superior, the
accused tried more than fifty times to convince A. Kokkalis
that the teachings of the Orthodox faith were not correct
on a number of issues, such as the virginity of the Holy
Mother, the ranks of the priests, the power of the Holy
Spirit etc.; the accused would engage with A. Kokkalis in
persistent and importunate discussions regarding the
teachings of the sect of the Pentecostal Church, of which
the accused was a follower, he would tell A. Kokkalis that
the teachings of the sect and not those of the Orthodox
Church were correct and he would urge A. Kokkalis to visit
a place in Larissa where the followers of the Pentecostal
Church used to gather and to become a member; the accused
also gave A. Kokkalis a free copy of a periodical published
by the followers of the Pentecostal Church entitled
'Christianity'; in the course of the above-mentioned
encounters the accused intentionally failed to reveal to
A. Kokkalis that he was a member of the Pentecostal sect.
Acting in the same capacity the accused committed the
offence of proselytism in the same place for a period of
four to five months in 1988 by engaging in several acts
which, however, gave rise to a single, albeit continuing,
breach of the relevant criminal provision; acting with the
aim of intruding on and changing the religious beliefs of
A. Zounara, an Orthodox Christian, and skilfully taking
advantage of her inexperience in religious matters and her
intellectual weakness, which resulted from her low level of
education, the accused tried importunately to persuade
A. Zounara to be baptised and become a member of the sect
of the Pentecostal Church telling her constantly that he
bore signs given to him by God, that he could tell the
future and that she and her children were possessed; the
accused intended to undermine A. Zounara's faith in
Orthodoxy and convert her to the sect of the Pentecostal
Church.
Acting in the same capacity the accused committed the
offence of proselytism in the same place between spring
1989 and 18 August 1989 by engaging in several acts which,
however, gave rise to a single, albeit continuing, breach
of the relevant criminal provision; acting with the aim of
intruding on and changing the religious beliefs of airman
N. Kafkas, an Orthodox Christian who served in the same
unit, and taking advantage of the trust inherent in a
relationship between a subordinate and a superior and of
the naivety and inexperience of N. Kafkas, the accused
tried to persuade N. Kafkas to adhere to the sect of the
Pentecostal Church; the accused would engage in continual,
persistent and importunate analysis of his beliefs
regarding the sect of the Pentecostal Church, read to
N. Kafkas continually the Gospel which the accused would
interpret in accordance with his own beliefs, give to
N. Kafkas publications of his sect and take N. Kafkas to
his place of worship; the accused succeeded in converting
N. Kafkas taking advantage of his inexperience concerning
religious matters and the influence he had on N. Kafkas
because of his position and rank."
28. The court also found that the third applicant had engaged in
proselytism vis-à-vis a warrant officer, Th. Tsikas.
29. The court imposed on the first applicant the penalties of five
months' imprisonment for the proselytism of G. Antoniadis, five months'
imprisonment for the proselytism of A. Kokkalis, five months'
imprisonment for the proselytism of S. Voikos and seven months'
imprisonment for the proselytism of N. Kafkas. The court ordered the
first applicant to serve an overall sentence of thirteen months'
imprisonment.
30. On the second applicant the court imposed the penalties of five
months' imprisonment for the proselytism of G. Antoniadis, five months'
imprisonment for the proselytism of A. Zounara, and eight months'
imprisonment for the proselytism of A. Bairamis, M. Bairami and the
others. The court ordered the second applicant to serve an overall
sentence of twelve months' imprisonment.
31. On the third applicant the court imposed the penalties of eight
months' imprisonment for the proselytism of A. Kokkalis, five months'
imprisonment for the proselytism of A. Zounara, five months'
imprisonment for the proselytism of Th. Tsikas and seven months'
imprisonment for the proselytism of N. Kafkas. The court ordered the
third applicant to serve an overall sentence of fourteen months'
imprisonment.
32. Finally, the court ordered that the penalties should be converted
to fines and that they should not be enforced provided that the
applicants did not commit new criminal offences in the following three
years.
33. The applicants appealed immediately to the Courts-Martial Appeal
Court (Anatheoritiko Dikastirio), being a court composed of five
military judges. Their appeal was heard on 7 October 1992.
34. The appeal court heard a number of witnesses among whom
I. Stamoulis who repeated what he had testified before the first
instance court. The court also heard N. Kafkas who testified that he
had served between the winter of 1988 and August 1989 in Unit X under
the orders of the first and third applicants. The two applicants did
not put any pressure on the witness to become a member of the
Pentecostal Church. The witness had himself approached the third
applicant and asked him why he was so peaceful. The third applicant
replied that this was the result of reading the Gospel. The two
applicants were not importunate towards the witness. They had simply
suggested to him that he read the Bible. When the witness did so, he
realised a number of points of divergence between the teachings of the
Orthodox Church and the Bible. The witness did not have any discussions
with the first and third applicants concerning the Orthodox and
Pentecostal Church. The witness simply turned to the two applicants
when he had any questions concerning the Bible and always found their
replies convincing. The two applicants never gave him any Pentecostal
literature to read. They never told the witness to go to the
Pentecostal church. The third applicant, who was responsible for the
witness, never authorised the witness's absence from the air-force. The
witness went to the Pentecostal church for the first time in September
1989 after he had been discharged from the armed forces. The witness
had never heard that the first and third applicants had approached
other airmen in order to talk to them about their religion. The witness
never told his father, A. Kafkas, that the first and third applicants
had proselytised him. A. Kafkas's testimony was false.
35. The appeal court also read the record of the hearing before the
first instance court, including the testimony of the various witnesses.
It also read a number of statements taken by the investigating judge,
among which the statements of A. Kafkas, who had not been summoned to
appear as a witness before the appeal court. In his statement to the
investigating judge, A. Kafkas had mentioned, inter alia, that his son,
N. Kafkas, when discharged from the armed forces, had brought home,
together with his personal belongings, a number of issues of the
periodical "Christianity" which had been published while N. Kafkas was
in the armed forces. N. Kafkas had told A. Kafkas that the officers
with whom N. Kafkas had been serving in the armed forces had suggested
to N. Kafkas to take off the cross he used to wear. N. Kafkas failed
to give A. Kafkas any explanations why he had brought back home his
television and radio sets. In December 1989 N. Kafkas told A. Kafkas
that he had been proselytised by the first and third applicants.
A. Kafkas had found the telephone numbers of some officers in his son's
Bible. He then inquired and found out the names of the remaining
officers. A. Kafkas had initially objected to his son's being called
to testify, but then withdrew his objection.
36. In a judgment pronounced immediately after the hearing the appeal
court rejected a plea raised by the defence to the effect that the
accused had merely exercised a constitutional right. It also upheld
most of the applicants' convictions, using the same reasoning as the
first instance court. It reversed, however, the conviction of the first
applicant for the proselytism of S. Voikos and that of the third
applicant for the proselytism of Th. Tsikas.
37. The appeal court imposed on the first and third applicants in
respect of the convictions it had upheld the same penalties as the
first instance court. However, their overall sentences were reduced to
eleven and twelve months' imprisonment respectively. The second
applicant's penalties were reduced by the appeal court to four months'
imprisonment for the proselytism of G. Antoniadis, four months'
imprisonment for the proselytism of A. Zounara, and six months'
imprisonment for the proselytism of A. Bairamis, M. Bairami and the
others. His overall sentence was reduced to ten months' imprisonment.
38. As none of the overall sentences imposed involved more than one
year's imprisonment, they were automatically converted by the court
into pecuniary penalties of 1,000 drachmas per day. The court finally
ordered that the penalties should not be enforced provided that the
applicants did not commit new criminal offences in the following three
years.
39. The applicants appealed in cassation. In a judgment delivered on
30 July 1993 the Court of Cassation (Arios Pagos) considered that the
crime of proselytism was committed when a person attempted to intrude
directly or indirectly on the religious beliefs of a person of
different religious convictions, with the aim of undermining them,
using one of the indicatively enumerated means in the relevant criminal
provision.
40. Article 4 of Law 1363/38 was found to be fully in accordance with
the provisions of the Greek Constitution which guarantee the principle
nullum crimen sine lege certa and the right to religious freedom. It
was also found to be in accordance with Article 9 of the European
Convention on Human Rights, since it did not purport to criminalise
religious beliefs, but only the attempt to intrude on the religious
beliefs of someone else with the aim of changing them; such an attempt
is fully inconsistent with religious freedom which creates an
obligation to respect the religious beliefs of every person of a
different religious persuasion. As a result, the court rejected the
applicant's plea that the law was unconstitutional.
41. As regards the particular circumstances of the case, the court
considered that the military courts had correctly interpreted and
applied Article 4 of Law 1363/38 when they convicted the applicants
using the particular reasoning. The court rejected the applicant's
appeal.
B. Relevant domestic law
42. Article 4 of Law 1363/38, as amended by Law 1672/39, provides as
follows:
"1. Anyone engaging in proselytism shall be liable to
imprisonment and a fine of between 1,000 drachmas and
50,000 drachmas; he shall, moreover, be subject to police
supervision for a period of between six months and one year
to be fixed by the court when convicting the offender. The
term of imprisonment may not be commuted to a fine.
2. By 'proselytism' is meant, in particular, any direct or
indirect attempt to intrude on the religious beliefs of a
person of a different religious persuasion (eterodoxos),
with the aim of undermining those beliefs, either by any
kind of inducement or promise of an inducement or moral
support or material assistance, or by fraudulent means or
by taking advantage of his inexperience, trust, need, low
intellect or naivety.
3. The commission of such an offence in a school or other
educational establishment or philanthropic institution
shall constitute a particularly aggravating circumstance."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
43. The Commission has declared admissible the applicants' complaints
that the Greek law on proselytism on the basis of which they were
convicted was not lex certa, that their convictions constituted
unjustified interferences with their rights to freedom of religion and
expression and that they were subjected to discrimination in the
enjoyment of their right to freedom of religion.
B. Points at issue
44. The Commission considers that these complaints fall to be divided
into two groups. The first group concerns the conviction of the
applicants for proselytism of military personnel of their unit; the
second group concerns the convictions of applicants for proselytism of
civilians. For both these groups, the points at issue are therefore
- whether there has been a violation of Article 9 (Art. 9) of the
Convention
- whether there has been a violation of Article 7 (Art. 7) of the
Convention
- whether there has been a violation of Article 10 (Art. 10) of the
Convention and
- whether there has been a violation of Article 14 (Art. 14) of the
Convention in conjunction with Article 9 (Art. 9).
C. As regards Article 9 (Art. 9) of the Convention
45. Article 9 (Art. 9) of the Convention provides as follows:
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
46. The Commission considers that the applicants' convictions for
proselytism and the penalties they received in that connection amount
to an interference with their right to "freedom to manifest (their)
religion or belief". Such an interference is contrary to Article 9
(Art. 9) unless it is "prescribed by law", directed at one or more of
the legitimate aims set out in paragraph 2 and is "necessary in a
democratic society" for achieving them.
1. Whether the interference was "prescribed by law"
47. The applicants submit that the ambiguous, vague and overbroad
language of Article 4 of Law 1363/38 is not compatible with the
requirement of legal certainty under Article 9 para. 2 (Art. 9-2) of
the Convention. The case-law relied on by the Government proves that
any form of evangelism could be considered to be a crime by the Greek
courts. This case-law left the applicants in doubt as to whether they
could give testimony with impunity of their faith to their colleagues,
especially since there were no decisions concerning members of the
armed forces.
48. The respondent Government submit that the applicants' conviction
was "prescribed by law" within the meaning of Article 9 para. 2
(Art. 9-2) of the Convention. They refer to the judgment of 25 May 1993
of the Court in the Kokkinakis case and specify that, although
Article 4 of Law 1363/38, as amended by Law 1672/39, does not contain
an exhaustive enumeration of the means by which the offence of
proselytism may be committed, this is necessary to avoid excessive
rigidity and keep pace with changing circumstances. Moreover, the
letter of the provision is supplemented by a body of settled national
case-law, which is mentioned in the Court's judgment in the Kokkinakis
case.
49. The Commission recalls that in its Kokkinakis judgment of
25 May 1993 the European Court of Human Rights noted that, in order to
avoid excessive rigidity and to keep pace with changing circumstances,
many criminal statutes are inevitably couched in terms which are, to
a greater or lesser extent, vague. Although the Greek law on
proselytism fell within that category of criminal statutes, the Court
considered that the letter of Article 4 of Law 1363/38 was supplemented
by a body of settled case-law which was published and which was such
as to enable the applicant of that case to regulate his conduct in the
matter (Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A
no. 260, p. 17, para. 31, and p. 19, para. 40).
50. The Commission does not consider that the submissions of the
parties contain any elements which would justify a different conclusion
in the applicants' case. It follows that the measure in question was
prescribed by law within the meaning of Article 9 para. 2 (Art. 9-2)
of the Convention.
2. Whether the interference pursued a legitimate aim
51. The applicants have not made any particular submissions in this
connection.
52. The Government argue that, as it was accepted by the Court in its
Kokkinakis judgment, the aim of the law on proselytism is "the
protection of the rights and freedoms of others" within the meaning of
Article 9 para. 2 (Art. 9-2) of the Convention. In the particular
circumstances, the conviction of the applicants also served another
legitimate aim, the protection of public safety and order. The
Government submit that the prevention of disorder in the armed forces
is indispensable for the general public safety and order. The
applicants' conviction was intended to preserve peace and cohesion
among soldiers and by extension safety in the armed forces. The
Government further contend that there is no place in the armed forces
for the heated discussions and animosity which may be caused by
attempts to change the religious beliefs of subordinates.
53. After an examination of the judgments of the domestic courts the
Commission finds that the primary aim of the applicants' convictions
under Article 4 of Law 1363/38 was to protect the religious freedom of
the Bairamis family and their neighbours, A. Zounara, G. Antoniadis,
A. Kokkalis and N. Kafkas. It follows that the measure complained of
pursued a legitimate aim under Article 9 para. 2 (Art. 9-2) of the
Convention, the protection of the rights and freedoms of the others.
54. The Commission also notes, however, that some of the counts on
which the applicants were found guilty involved other members of the
armed forces of lower rank. It considers, therefore, that, when
convicting the applicants on the particular counts, the domestic courts
also aimed at maintaining discipline in the armed forces. It follows
that the applicants' convictions for the proselytism of G. Antoniadis,
A. Kokkalis and N. Kafkas pursued a second 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"
55. The applicants argue that the Greek law on proselytism is
fundamentally incompatible with the Convention, because of its chilling
effect on the right guaranteed under Article 9 (Art. 9) thereof.
56. The applicants further contend that their convictions were not
necessary in a democratic society. They consider that the thrust of the
Kokkinakis judgment of the European Court of Human Rights is to place
the heaviest burden on the State that wishes to justify restrictions
on religious freedom. However, the domestic courts have failed to
substantiate in their decisions the use of improper means on the part
of the applicants on either the airmen or civilians.
57. The applicants argue that it is difficult to imagine a pressing
social need capable of restricting the freedom to engage in responsible
religious evangelism as exercised by adherents of mainline Christian
denominations, such as the Pentecostal Church. As regards their
convictions for the proselytism of airmen, the applicants stress that
they only had informal discussions with them. Such discussions had not
been made a required part of military training, nor were sanctions
imposed or threatened to the airmen who did not accept the viewpoint
of the applicants or refused to listen to them, nor was any inducement
offered. The fact that the discussions were held between a superior and
a subordinate could not justify in itself the limitation of the
applicants' rights. Most social structures in modern societies are
hierarchical and, if States were permitted to criminalise religious
discussions between a superior and a subordinate, religious freedom
would be seriously undermined. Moreover, the airmen in question were
sufficiently mature to die for their country. A fortiori they were
sufficiently mature to discuss and decide for themselves religious
matters.
58. Furthermore, the applicants argue that the religious discussions
in question did not prevent the applicants from discharging their
military functions. The religious beliefs of the applicants, not being
pacifist, were not in any sense dangerous to military efficiency. The
Government have not demonstrated that the presentation of the
applicants' faith would necessarily produce military and social
anarchy.
59. As regards the facts of each case of alleged proselytism, the
applicants stress that G. Antoniadis testified, in respect of the only
incident of alleged proselytism identifiable in place and time, that
he was approached by the first applicant "after hours". G. Antoniadis's
subjective fear was not backed by any subjective evidence. All airmen
were able to refuse the applicants' advances without any consequences.
N. Kafkas's own testimony, which exonerated the first and third
applicants, was to be preferred to that of his father, A. Kafkas, which
was hearsay.
60. The applicants point out that A. Zounara was not cross-examined
by the defence. In any event, her testimony did not refer to any
coercion on the part of the second or third applicants nor did it
disclose any intellectual weakness on her part. The difference in
social status between the second and third applicants and her cannot
form the basis for limiting the Convention rights of the former. Her
psychological problems were not the result of proselytism, but of her
family break-up. There was no proof that these problems were associated
with the second and third applicants' evangelistic activities. In any
event, A. Zounara proved to be in control of the situation and,
exercising her free will, she severed all contact with the
two applicants.
61. Finally, the applicants argue that the imposition of a criminal
penalty, even when limited or commuted to a pecuniary fine, constituted
a disproportionate interference with their rights under the Convention.
62. The Government contend that, since Article 4 of Law 1363/38 only
punishes improper proselytism, it is fully compatible with Article 9
(Art. 9) of the Convention, as interpreted in the Kokkinakis judgment.
63. As regards the particular circumstances of the case, the
Government claim that they could be distinguished from those in the
Kokkinakis case. First, the applicants were military officers, who were
subject to special conditions and had specific "duties" and
"responsibilities" within the meaning of Article 10 (Art. 10) of the
Convention which could justify wider restrictions on their Convention
rights. In particular, because of the applicants' professional status,
their views were liable to carry special weight with young persons
under their command or persons who were vulnerable and intellectually
weak, because of their social status, difficult family circumstances
and low level of education. Secondly, the applicants engaged themselves
in more than one act of proselytism over a long period of time and were
so persistent and systematic that their attempt to change their
victims' religious beliefs could be assimilated to an attack. Thirdly,
the crime took place in military premises when the applicants and quite
often their victims were on duty.
64. The Government submit that the applicants' conviction was
necessary in a democratic society because the applicants took advantage
of the influence which officers by definition have over ordinary
soldiers and of the confidence which young soldiers have in them. The
Government refer in this connection to the special relations of
dependency which are created in the military forces, as a result of the
strict hierarchical structure of the army, and which do not permit the
development of a free dialogue on an equal basis between an officer and
a subordinate. They rely in this respect on the testimonies of
G. Antoniadis, A. Kokkalis, A. Kafkas, N. Kafkas and I. Bairamis.
65. The second and third applicants also took advantage of the
psychological problems which her difficult family circumstances had
created for A. Zounara, her level of education and the respect she had
for military officers. The Government refer in this connection to a
statement made by A. Zounara before the investigating judge.
66. The Government, finally, stress that the requirement of
proportionality in Article 9 para. 2 (Art. 9-2) of the Convention could
not have been breached, since the penalty imposed at first instance had
been suspended and the penalty imposed on appeal was first converted
into a fine and then suspended.
67. The Commission recalls that, in accordance with the case-law of
the Court, a certain margin of appreciation is to be left to the
Contracting States in assessing the existence and extent of the
necessity of an interference with the freedom to manifest one's
religion under Article 9 (Art. 9) of the Convention, but this margin
is subject to European supervision, embracing both the legislation and
the decisions applying it, even those given by an independent court.
The Convention organs' task is to determine whether the measures taken
at national level were justified in principle and proportionate. In
order to examine this latter point, the Commission must weigh the
requirements of the protection of the rights and liberties of others
and, where applicable, the need to maintain order in the armed forces
against the conduct of which the applicants stood accused. In
exercising its supervisory jurisdiction, the Commission must look at
the impugned judicial decisions against the background of the case as
a whole (see above-mentioned Kokkinakis judgment, p. 21, para. 47). It
must also satisfy itself that the national authorities applied
standards which were in conformity with the principles embodied in
Article 9 (Art. 9) of the Convention and, moreover, that they based
themselves on an acceptable assessment of the relevant facts (see,
mutatis mutandis, Eur. Court H.R., Jersild judgment of 23 September
1994, Series A no. 298, p. 24, para. 31).
68. The Commission further recalls that the question of the
compatibility of the Greek law on proselytism with Article 9 (Art. 9)
of the Convention does not arise for the first time before the
Convention organs. In its Kokkinakis judgment the European Court of
Human Rights considered that, although the right to attempt to change
one's neighbour's beliefs was guaranteed in principle under Article 9
(Art. 9) of the Convention, a distinction must be made between bearing
Christian witness and improper proselytism; scrutiny of section 4 of
Law 1363/38 showed that the relevant criteria adopted by the Greek
legislature were reconcilable with the foregoing if and insofar as they
were designed only to punish improper proselytism, which the Court did
not find it necessary to define in the abstract (abovementioned
Kokkinakis judgment, p. 17, para. 31, and p. 21, para. 48).
69. The Commission further notes that the Court of Cassation, in
upholding the three applicants' convictions, adopted an approach to the
question of the compatibility of the Greek law on proselytism with the
Convention which differed from that of the European Court of Human
Rights. In particular, the Court of Cassation failed to distinguish
between the use of proper and improper means and considered that it was
permitted to criminalise every attempt to change one's neighbour's
beliefs. Thus, the Court of Cassation found the Greek law on
proselytism to be compatible with Article 9 (Art. 9) of Convention and
the equivalent provision of the Greek Constitution on the ground that
"(the law on proselytism) does not purport to criminalise religious
beliefs, but only the attempt to intrude on the religious beliefs of
someone else with the aim of changing them; such an attempt is fully
inconsistent with religious freedom which creates an obligation to
respect the religious beliefs of every person of a different religious
persuasion" (cf. judgment of the Court of Cassation of 30 July 1993,
paras. 39-41, issued after the Kokkinakis judgment of the European
Court of Human Rights).
70. The Commission notes that the difference in the approach of the
European Court of Human Rights and the Court of Cassation concerns a
fundamental aspect of the interpretation of Article 9 (Art. 9) of the
Convention, which could have important consequences for the applicants'
case. It considers, therefore, that particular care is called for when
examining whether the reasons adduced by the national authorities to
justify the interference with the applicants' freedom to manifest their
religion under Article 9 (Art. 9) of the Convention were relevant and
sufficient and whether the means employed were proportionate to the
legitimate aim pursued.
71. The Commission will first examine the necessity in a democratic
society of the conviction of the second applicant for the proselytism
of the Bairamis family and their neighbours and the conviction of the
second and third applicants for the proselytism of A. Zounara. Then it
will examine the necessity of the conviction of the first and second
applicants for the proselytism of airman G. Antoniadis and of the first
and third applicants for the proselytism of airmen A. Kokkalis and
N. Kafkas.
i. The conviction of the second applicant for the proselytism of the
Bairamis family and their neighbours and the conviction of the
second and third applicants for the proselytism of A. Zounara
72. The Commission recalls that the particular charges were heard by
the military courts because the second and third applicants were
military officers. However, the persons whom the two applicants were
accused of proselytising, i.e. the Bairamis family, their neighbours
and A. Zounara, were not members of the armed forces and the Commission
considers that in this respect the two applicants' case is not to be
distinguished from that of Kokkinakis.
73. The Commission further considers that the two applicants' case
is similar to that of Kokkinakis, in that the domestic courts
established their liability on the particular counts by merely
reproducing the wording of Article 4 of Law 1363/38. The domestic
courts did not sufficiently specify in what way the two applicants had
attempted to convince the Bairamis family, their neighbours and
A. Zounara by improper means. None of the facts they set out in their
decisions, including the two applicants' professional status, the
repetition of the acts in the case of A. Zounara and the latter's low
level of education, warrants such a conclusion.
74. The Commission, therefore, considers that it has not been shown
that the second and third applicants' conviction on the particular
counts was justified in the circumstances of the case by a pressing
social need. It follows that the contested measure was not "necessary
in a democratic society ... for the protection of the rights and
freedoms of others", which is the only legitimate aim which it could
pursue, since the counts under examination did not involve other
members of the armed forces of lower rank.
CONCLUSION
75. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 9 (Art. 9) of the Convention
insofar as the second applicant was convicted for the proselytism of
the Bairamis family and their neighbours.
76. The Commission concludes, by 24 votes to 5, that in the present
case there has been a violation of Article 9 (Art. 9) of the Convention
insofar as the second and third applicants were convicted for the
proselytism of A. Zounara.
ii. The conviction of the first and second applicants for the
proselytism of airman G. Antoniadis, the conviction of the first
and third applicants for the proselytism of airmen A. Kokkalis
and N. Kafkas
77. The Commission recalls that the particular charges did not
involve civilians but three airmen serving in the applicants' unit. The
applicants tried to persuade the three airmen to change their religious
beliefs and this fact, together with the applicants' status as military
officers and the persistency of their efforts, led the domestic courts
to conclude that the applicants were guilty of proselytism. The
respondent Government submit that these factors, among others, clearly
distinguish the applicants' case from that of Kokkinakis. The
Commission is, therefore, called upon to examine whether the facts
relied on by the domestic courts justify the conclusion that the
applicants used improper means to change the religious beliefs of the
airmen in question.
78. The Commission notes, on the one hand, that the three airmen were
not obliged to undergo any form of instruction in the beliefs of a
church other than their own as part of their military training.
Moreover, there is no indication that the applicants used threats or
inducements in their attempts to convince the three airmen to change
their religious beliefs. On the other hand, the Commission considers
that the special character of the relationship between a superior and
a subordinate in the army, which differs from other hierarchical
relations, renders the subordinate more susceptible to influence in a
variety of matters, including religious beliefs.
79. It was in order to ensure that the three airmen's religious
beliefs were respected by persons who could take advantage of that
special relationship that the military courts convicted the applicants.
The Commission notes, moreover, that, as observed by the military
courts, the applicants and the airmen in question served in the same
unit and that the applicants' attempts to persuade the airmen to change
their religious beliefs extended over rather long periods of time.
Finally, the Commission does not disregard the fact that the applicants
received suspended sentences consisting of fines.
80. On the basis of all the above and taking into consideration the
domestic authorities' margin of appreciation, the Commission finds that
the applicants' conviction on the particular counts could be regarded
as justified in the circumstances of the case by a pressing social need
and that the contested measure was not disproportionate to one of the
legitimate aims pursued, "the protection of the rights and freedoms of
the others". It follows that the contested measure was "necessary in
a democratic society" within the meaning of Article 9 para. 2
(Art. 9-2) of the Convention.
CONCLUSION
81. The Commission concludes, by 28 votes to 1, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention insofar as the first and second applicants were convicted
for the proselytism of G. Antoniadis and the first and third applicants
were convicted for the proselytism of A. Kokkalis.
82. The Commission concludes, by 23 votes to 6, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention insofar as the first applicant and third applicants were
convicted for the proselytism of N. Kafkas.
D. As regards Article 7 (Art. 7) of the Convention
83. 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. ..."
84. The applicants argue that Article 4 of Law 1363/38 is not lex
certa. The Government disagree. Both parties refer to their relevant
submissions under Article 9 (Art. 9) of the Convention.
85. 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).
86. The Commission has already considered that the wording of
Article 4 of Law 1363/38, as supplemented by a body of settled case-
law, enabled the applicants to regulate their conduct in the matter
(see para. 50). It follows that there was no breach of Article 7
(Art. 7) of the Convention.
CONCLUSION
87. The Commission concludes, by 28 votes to 1, that in the present
case there has been no violation of Article 7 (Art. 7) of the
Convention.
E. As regards Article 10 (Art. 10) of the Convention
88. 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 of
the judiciary."
89. The applicants argue that their conviction amounted to an
interference in the exercise of their right to freedom of expression
which cannot be justified under Article 10 para. 2 (Art. 10-2) of the
Convention. The Government submit that the interference was justified.
Both parties refer to their relevant submissions under Article 9
(Art. 9) of the Convention.
90. The Commission considers that, when exercise of the right to
freedom of expression consists in the freedom to manifest one's
religion or belief in worship, teaching or observance, it is primarily
the right guaranteed by Article 9 (Art. 9) of the Convention which is
applicable. It follows that no separate issue arises under Article 10
(Art. 10) of the Convention.
CONCLUSION
91. The Commission concludes, unanimously, that no separate issue
arises under Article 10 (Art. 10) of the Convention.
F. As regards Article 14 (Art. 14) of the Convention in conjunction
with Article 9 (Art. 9) of the Convention
92. Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
93. The Commission has, on the one hand, concluded that there has
been a violation of Article 9 (Art. 9) of the Convention insofar as the
second applicant was convicted for the proselytism of the Bairamis
family and their neighbours and the second and third applicants were
convicted for the proselytism of A. Zounara. It considers, therefore,
that no separate issue arises under Article 14 (Art. 14) of the
Convention in conjunction with Article 9 (Art. 9) of the Convention in
respect of these convictions.
94. On the other hand, the Commission has concluded that there has
been no violation of Article 9 (Art. 9) of the Convention insofar the
first and second applicants were convicted for the proselytism of
G. Antoniadis and the first and third applicants were convicted for the
proselytism of A. Kokkalis and N. Kafkas. As a result, it cannot be a
priori excluded that a separate issue may arise under Article 14
(Art. 14) of the Convention in conjunction with Article 9 (Art. 9).
95. However, the Commission notes that, when the applicants first
raised their complaint about discrimination in the enjoyment of their
right to freedom of religion in their application forms, they did not
provide any particulars. Moreover, this complaint was not pursued in
the applicants' written observations. As a result, the Commission
considers that, in the absence of any substantiation, there has been
no violation of Article 14 (Art. 14) of the Convention in conjunction
with Article 9 (Art. 9) insofar as the first and second applicants were
convicted for the proselytism of G. Antoniadis and the first and third
applicants were convicted for the proselytism of A. Kokkalis and
N. Kafkas.
CONCLUSION
96. The Commission concludes, unanimously, that in the present case
no separate issue arises under Article 14 (Art. 14) of the Convention
in conjunction with Article 9 (Art. 9) insofar as the second applicant
was convicted for the proselytism of the Bairamis family and their
neighbours and the second and third applicants were convicted for the
proselytism of A. Zounara.
97. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 (Art. 14) of the Convention
in conjunction with Article 9 (Art. 9) insofar as the first and second
applicants were convicted for the proselytism of G. Antoniadis and the
first and third applicants were convicted for the proselytism of
A. Kokkalis and N. Kafkas.
G. Recapitulation
98. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 9 (Art. 9) of the Convention
insofar as the second applicant was convicted for the proselytism of
the Bairamis family and their neighbours (para. 75).
99. The Commission concludes, by 24 votes to 5, that in the present
case there has been a violation of Article 9 (Art. 9) of the Convention
insofar as the second and third applicants were convicted for the
proselytism of A. Zounara (para. 76).
100. The Commission concludes, by 28 votes to 1, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention insofar as the first and second applicants were convicted
for the proselytism of G. Antoniadis and the first and third applicants
were convicted for the proselytism of A. Kokkalis (para. 81).
101. The Commission concludes, by 23 votes to 6, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention insofar as the first applicant and third applicants were
convicted for the proselytism of N. Kafkas (para. 82).
102. The Commission concludes, by 28 votes to 1, that in the present
case there has been no violation of Article 7 (Art. 7) of the
Convention (para. 87).
103. The Commission concludes, unanimously, that no separate issue
arises under Article 10 (Art. 10) of the Convention (para. 91).
104. The Commission concludes, unanimously, that in the present case
no separate issue arises under Article 14 (Art. 14) of the Convention
in conjunction with Article 9 (Art. 9) insofar as the second applicant
was convicted for the proselytism of the Bairamis family and their
neighbours and the second and third applicants were convicted for the
proselytism of A. Zounara (para. 96).
105. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 (Art. 14) of the Convention
in conjunction with Article 9 (Art. 9) insofar as the first and second
applicants were convicted for the proselytism of G. Antoniadis and the
first and third applicants were convicted for the proselytism of
A. Kokkalis and N. Kafkas (para. 97).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTIALLY CONCURRING AND PARTIALLY DISSENTING
OPINION OF Mrs. J. LIDDY
In Kokkinakis v. Greece (Series A, Vol. 260) both the Commission
and the Court were of the majority view that Section 4 of Law
no. 1363/1938 was supplemented by a body of published, settled case-law
sufficient to enable the applicant in that case to regulate his
conduct. Accordingly, the requirement under Article 9 (2) that the
interference be "prescribed by law" and the requirements of Article 7
where met in that case.
Since that judgment of 25 May 1993 the scope of Greek law
prohibiting proselytism has become considerably more obscure. In its
judgment of 30 July 1993 in the present applicants' case the Court of
Cassation found that the law on proselytism criminalises attempts to
intrude on the religious beliefs of another with the aim of changing
them contrary to the obligation to respect the religious beliefs of
every person of a different religious persuasion. In marked contrast
to the understanding of the Commission and Court at the time of the
Kokkinakis case which was that Section 4 was "designed only to punish
improper proselytism" (para. 48 of the judgment), the Court of
Cassation has apparently accepted that simple statements of belief
which nevertheless "intrude" on another's beliefs are punishable. It
is noteworthy that the Court of Cassation upheld the reasoning of the
first instance and appeals courts which either failed entirely to
explain what was improper or exploitative about the conversations in
question (for example, in relation to the first applicant's conviction
for proselytising G. Antoniadis) or described the conduct as
"importunate" without indicating the circumstances of time and place
or how the discussions had been initiated.
Secondly, no precedent has been cited concerning the application
of the law to military officers who do not hold pacifist convictions.
It seems clear that young men liable for military service, and possibly
action, will be of a certain maturity. It also seems clear that on the
one hand such young men may wish to engage in discussions on
fundamental questions concerning matters of religious belief, as
witness the practice in many if not all countries of providing army
chaplains, but that on the other hand senior officers could abuse their
power if entitled to initiate such discussions, at least during duty
hours. However, there appears to be no regulation in Greek law of the
circumstances, if any, in which superior officers may engage in such
discussions with their juniors. The applicants stress that
G. Antoniadis testified, in respect of the only incident of alleged
proselytism identifiable in place and time, that he was approached by
the first applicant "after hours" (see decision on admissibility). In
the absence of specific regulation or precedents governing potentially
exploitative conduct by superior officers it cannot be said that
Section 4 of Law no. 1383/1938 was sufficiently clear to enable the
applicants to know in advance that their discussions could be
punishable.
For these reasons I consider that neither the requirement under
Article 9 (2) that the interference be "prescribed by law" nor the
requirements of Article 7 were met in the present case. There have
therefore been violations of Articles 7 and 9 in relation to all the
sentences imposed.
(Or. English)
PARTIALLY DISSENTING OPINION OF MM. H.G. SCHERMERS,
C.L. ROZAKIS, M.A. NOWICKI, B. CONFORTI AND N. BRATZA
Unfortunately, we are not able to agree with the conclusion of
majority of the Commission concerning the compatibility with Article 9
of the Convention of the conviction of the first and third applicants
for the proselytism of N. Kafkas.
We note in this respect that, in order to convict the two
applicants on the particular count, the domestic courts relied, inter
alia, on the hierarchical links which the two applicants had with
N. Kafkas while he was serving in the armed forces. However, N. Kafkas,
as opposed to the other airmen, eventually adopted the applicants'
religious beliefs. Having failed to appear before the first instance
court, when N. Kafkas appeared before the appeal court, he testified
that he had acceded to the Pentecostal Church of his own free will and
that the two applicants had never attempted to influence him.
We consider that such testimony should carry special weight in
proselytism cases. However, it cannot be excluded that the national
courts, after a careful evaluation of all the evidence before them, may
reach the conclusion that the conversion of the person concerned was
not the result of his own free will but that improper means were indeed
used. In principle, the Convention organs should pay due regard to such
a finding by a national court which has had the benefit of hearing all
the witnesses of the case.
However, we note that in the applicants' case the decisions of
the military courts, which the Court of Cassation upheld, did not
contain any evaluation of the evidence. Moreover, the appeal court did
not hear A. Kafkas, who was the principal prosecution witness on the
particular counts. Instead it chose to rely on the witness's statement
to the investigating judge and his testimony before the first instance
court to the effect that his son, N. Kafkas, had been converted to the
Pentecostal Church during his military service under the influence of
the two applicants who were superior officers. We note, however, that
A. Kafkas's testimony was based on what he claimed to have heard from
N. Kafkas and others. We also note that N. Kafkas appeared before the
appeal court in order to contradict his father, while A. Kafkas failed
to identify his other sources. The second prosecution witness,
I. Stamoulis, merely reported what he had heard from A. Kafkas.
It follows that the two applicants' conviction for the
proselytism of N. Kafkas was based on evidence which was not
sufficiently tested by the national courts. In these circumstances, we
cannot consider that it has been established that N. Kafkas's
conversion was the result of undue influence exercised by the two
applicants on N. Kafkas during his military service. The other
considerations which the domestic courts invoked in their decisions
were a mere repetition of the wording of Article 4 of Law 1363/1938.
In our view, it follows that the contested measure was not
"necessary in a democratic society" for the protection of the rights
and freedoms of others or the maintenance of order in the armed forces.
This is why we voted in favour of a violation of Article 9 insofar as
the first and third applicants were convicted for the proselytism of
N. Kafkas.
(Or. French)
PARTIALLY DISSENTING OPINION OF Mr. F. MARTINEZ
JOINED BY Mrs. G.H. THUNE AND MM. E. BUSUTTIL,
J.-C. GEUS AND A. PERENIC
Je partage entièrement l'avis de la Commission sur tous les
points où il n'aboutit pas à des constats de violations de la
Convention. Non sans quelques hésitations, je pourrais accepter une
violation de l'article 9 en ce qui concerne la famille Bairamis et
leurs voisins ; mais pas du tout pour ce qui est de Mme Zounara.
Le cas Zounara
Je ne suis pas d'accord avec la majorité. Celle-ci justifie la
violation par deux arguments :
1. Mme Zounara n'est pas un membre des forces armées ;
2. Les juridictions internes se seraient limitées à reproduire le
texte de l'article 4 de la loi 1363/1968 et n'expliquent pas les moyens
par lesquels les requérants ont essayé de convaincre Mme Zounara.
Même si Mme Zounara n'est pas sous les ordres militaires des
requérants, ceux-ci ont employé des manoeuvres tortueuses bien
expliquées par les juridictions internes. Je me réfère au paragraphe
27 du rapport de la Commission où il y a une traduction de l'arrêt
relatif au deuxième requérant. J'y lis ceci :
"... he tried persistently to convince A. Zounara that the
followers of the Pentecostal Church bore marks given to them by
God, that they could prophesy the future, that A. Zounara and her
children were possessed by the devil, that the devil was fighting
to keep control over her, that A. Zounara worshipped idols and
daemons and that the Pentecostal church was the holder of the
truth; the accused also urged A. Zounara in a pressing manner to
get baptised and become a member of the Pentecostal Church."
Toujours au paragraphe 27 du rapport de la Commission, on peut
lire pour le troisième requérant :
"... skilfully taking advantage of her inexperience in religious
matters and her intellectual weakness, which resulted from her
low level of education, the accused tried importunately to
persuade A. Zounara to be baptised and become a member of the
sect of the Pentecostal Church telling her constantly that he
bore signs given to him by God, that he could tell the future and
that she and her children were possessed; the accused intended
to undermine A. Zounara's faith in Orthodoxy and convert her to
the sect of the Pentecostal Church."
A mon avis, il résulte clairement des citations ci-dessus que les
tribunaux internes ne se sont pas bornés à recopier les termes du texte
de loi applicable mais qu'ils ont, au contraire, détaillé les
agissements dolosifs reprochés aux requérants.
Full & Egal Universal Law Academy