Information Note on the Court’s case-law 13
December 1999
Serif v. Greece - 38178/97
Judgment 14.12.1999 [Section II]
Article 9
Article 9-1
Freedom of religion
Conviction of mufti for usurping functions of a minister of a "known religion": violation
Facts: In 1985 the State appointed T. to a vacant post of mufti (Muslim religious leader) of Rodopi. In 1990 two Muslim Members of Parliament requested that the State, in accordance with the legislation in force, organise elections to fill the posts of mufti of Rodopi and mufti of Xanthi. In the absence of any reply, they decided to organise their own elections in the mosques in December 1990. Prior to these elections, the President of the Republic adopted a legislative act amending the procedure for the appointment of muftis, who thenceforth were to be appointed by presidential decree. Such legislative acts may be adopted "when an extremely urgent and unforeseeable need arises" and must be approved by Parliament within 40 days. The applicant was elected mufti of Rodopi in the elections organised by the two MPs and, together with other Muslims, he initiated proceedings before the Council of State challenging the lawfulness of T.’s appointment. These proceedings are still pending. In February 1991 Parliament enacted a law retroactively validating the legislative act adopted by the President. Criminal proceedings were subsequently brought against the applicant for usurping the functions of minister of a "known religion" and for wearing the uniform of that office without having the right to do so. Following his trial in December 1994, the applicant was convicted and sentenced to 8 months’ imprisonment. His conviction was confirmed on appeal and his sentence set at 6 months’ imprisonment, commuted to a fine. His appeal on points of law was dismissed by the Court of Cassation.
Law: Article 9: The applicant's conviction amounted to an interference with his rights under this provision "in community with others and in public, to manifest his religion in worship and teaching". It was unnecessary to decide whether the interference was prescribed by law because it was in event incompatible with Article 9 on other grounds. While it pursued the legitimate aim of protecting public order, it could not be regarded as necessary in a democratic society. The courts which convicted the applicant did not mention any specific acts by the applicant taken with a view to producing legal effects, but only to his delivering messages and speeches and appearing in the clothes of a religious leader. However, punishing a person for the mere fact that he acted as the religious leader of a group that willingly followed him can hardly be considered compatible with the demands of religious pluralism. There existed an officially appointed mufti, but there is no indication that the applicant attempted to exercise the judicial and administrative functions for which the legislation makes provision and in democratic societies the State does not need to take measures to ensure that religious communities remain or come under a unified leadership. While tension may be created where a religious or any other community becomes divided, this is one of the unavoidable consequences of pluralism and the role of the authorities is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other. In addition, the Government made no allusion to actual disturbances.
Conclusion: violation (unanimous).
In view of the above finding, the Court found unanimously that it was not necessary to examine whether Article 10 had also been violated.
Article 41 - The Court awarded as compensation for pecuniary damage the equivalent of the fine that the applicant had to pay (700,000 drachmas (GRD)) and as compensation for non-pecuniary damage the sum of 2 million drachmas.
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This summary by the Registry does not bind the Court.
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