Lexploria

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.

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LARISSIS AND OTHERS v. GREECE

LARISSIS AND OTHERS v. GREECE

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