Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18877/91

Sadik AHMET

against

Greece

REPORT OF THE COMMISSION

(adopted on 4 April 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-31) . . . . . . . . . . . . . . . . . .3

B. The relevant domestic law

(para. 32). . . . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 33-55) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 33). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 34). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 10 of the Convention

(paras. 35-54). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 55). . . . . . . . . . . . . . . . . . . . .8

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . .9

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Greek national, born in 1947 and resident in

Komotini (Western Thrace, Greece). He was represented before the

Commission by Prof. Tekin Akillioglu, a lawyer practising in Ankara.

3. The application is directed against Greece. The respondent

Government were represented by their Agent, Mr. Vassilios Kontolaimos

of the Legal Council of State.

4. The case concerns the conviction and sentence of the applicant,

one of the political leaders of the Moslem (Turkish) minority in

Western Thrace. He was convicted of disrupting public peace by

distributing, during his election campaign in October 1989, printed

material referring to the Moslem population of Western Thrace as

"Turks". He was sentenced to 15 months' imprisonment. The applicant

invokes Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 11 July 1991 and registered on

27 September 1991.

6. On 3 May 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government submitted their observations on 8 October 1993,

after one extension of the time-limit fixed for this purpose, and their

supplementary observations on 29 October 1993. The applicant replied

on 18 November 1993.

8. On 14 April 1994 the Commission decided to hold a hearing of the

parties. On 20 June 1994 the President of the Commission granted the

applicant legal aid for the representation of his case. The hearing was

held on 1 July 1994. The Government were represented by their Agent,

Mr. Vassilios Kontolaimos and by Ms. Vassilia Pelekou as adviser. The

applicant was represented by Prof. Tekin Akillioglu.

9. On 1 July 1994 the Commission declared admissible the applicant's

complaint under Article 10 of the Convention. It declared inadmissible

the remainder of the application.

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

to the parties on 13 July 1994.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

D. SVÁBY

G. RESS

13. The text of this Report was adopted on 4 April 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant was elected Member of Parliament in June 1989 and

was a potential candidate at the election on 5 November 1989. In

October 1989, the applicant and B., another candidate, distributed

leaflets which, inter alia, referred to the "Turkish minority" of

Western Thrace.

18. The applicant and B. were subsequently charged with deceiving the

electoral body (exapatisi eklogeon), an offence under Article 162 of

the Greek Penal Code, because in the leaflet they had stated that the

candidates of the main political parties had created a climate of

terror and anarchy among the Moslem population. They were further

charged with "disrupting public peace" (diataraxi koinis eirinis), an

offence under Article 192 of the Penal Code, by openly and indirectly

inciting citizens to violence or by creating rifts among the population

by the use of the words "Turk(s)" or "Turkish" to identify the Moslems

of Western Thrace.

19. On 25 January 1990 the applicant appeared before the First

Instance Criminal Court (Trimeles Plimmeleiodikeio) of Rhodopi charged

with the above offences. While the interrogation of witnesses was

taking place the applicant requested that one of the judges be

discharged because the way in which he put questions indicated that he

was biased. This request was rejected.

20. The applicant alleges that at one stage he requested the

proceedings to be adjourned because of the absence of his lawyer, but

that his request was also rejected. However this event does not appear

in the records of the hearing.

21. On 26 January 1990 the Court acquitted the applicant of deceit

but found him guilty of disrupting public peace. It held that by the

end of October 1989 the applicant had distributed to the population of

Komotini and other places in the District of Rhodopi printed material

which repeatedly contained the terms "Turk", "Turkish Moslem", and the

"Turkish Moslem minority of Western Thrace", referring to the Greek

Moslem citizens of Rhodopi; he had thereby aimed at creating feelings

of hatred and enmity and at dividing the population; his purpose was

to incite the population of each community to act violently against the

other and to disrupt, as he actually did, the peaceful coexistence of

the Greek Christian and the Greek Moslem communities.

22. The Court sentenced the applicant to 18 months' imprisonment, not

convertible into a fine. His request to suspend the sentence pending

his eventual appeal was rejected by the Court, on the ground, inter

alia, that the applicant was dangerous and that there was a risk that

he would flee to Turkey.

23. The applicant was detained from 26 January to 30 March 1990.

24. On 27 January 1990 the applicant appealed against the above

judgment.

25. By the end of January 1990 violence erupted in Komotini which

resulted in damage to numerous businesses and shops. A Christian was

killed by a Moslem in a hospital.

26. On 30 March 1990 the Court of Appeal (Trimeles Efeteio) of Patras

confirmed the first instance judgment, finding the applicant guilty of

disrupting public peace.

27. The Court stated that the applicant had deliberately described

the Greek Moslems of Western Thrace as "Turks", although he knew that

the 1923 Treaty of Lausanne refers to and recognises only a religious

(Moslem) minority and not a Turkish (ethnic) minority. It held that the

applicant aimed at creating feelings of hatred and hostility within the

Moslem community towards the Greek Christians, and that he had

succeeded in disrupting public peace in Komotini, as well as provoking

violent events in this town. However, the Court of Appeal reduced the

sentence to 15 months' imprisonment, convertible to a fine.

28. On 8 April 1990, after his release from prison, the applicant was

re-elected to the Greek Parliament.

29. On 24 October 1990 the applicant appealed to the Court of

Cassation (Areios Pagos).

30. In his appeal he complained that the charges against him were

vague and that the courts should have declared the prosecution case

inadmissible. He further complained that the judgment of the Court of

Appeal was not sufficiently reasoned as required by the Constitution

and the law. In this respect he complained that the Court did not

indicate in what way the use of the word "Turk" or "Turkish" was

capable per se of creating a climate of hatred or of disrupting public

peace. He also complained that the judgment gave no concrete examples

of any event having actually occurred by the end of October 1989 which

could have been regarded as a genuine disruption of public peace or a

disturbance of public order.

31. On 15 February 1991 the Court of Cassation rejected the appeal.

The Court found that the judgment of the Court of Appeal had been

sufficiently reasoned.

B. The relevant domestic law

32. Article 192 of the Greek Penal Code provides:

"Any person who publicly and in any manner whatsoever provokes

or incites the citizens to mutual assault or discord and thus

disrupts public peace, shall be liable to imprisonment for a term

not exceeding two years, unless another provision imposes a more

severe sentence."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

33. The Commission has declared admissible the applicant's complaint

that his conviction of having disrupted public peace, by distributing

printed material referring to the Moslem population of Western Thrace

as "Turks", violated his rights under Articles 9, 10, 11 and 14

(Art. 9, 10, 11, 14) of the Convention. As his conviction involved his

writings, the Commission considered that the main issue arose under

Article 10 (Art. 10) of the Convention.

B. Point at issue

34. The Commission is called upon to consider whether or not there

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

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

35. The relevant parts of Article 10 (Art. 10) of the Convention

provide as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authorities and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime ...".

36. In the present case the Commission finds that there has been an

interference by a public authority with the exercise of the applicant's

freedom of expression within the meaning of Article 10 (Art. 10). This

interference resulted from his conviction and sentence to 18 months'

imprisonment by the Criminal Court of Rhodopi.

37. The Commission also finds that the interference was in accordance

with law as it was based on Article 192 of the Greek Penal Code. The

restriction furthermore pursued a legitimate aim covered by Article 10

para. 2 (Art. 10-2) of the Convention, namely the prevention of

disorder.

38. Accordingly, the key issue in the present case which remains to

be examined is whether the restriction complained of could reasonably

be considered to be "necessary in a democratic society" as required by

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

39. The applicant stresses the key role played by freedom of

expression in a democratic society and considers that the importance

of this freedom is even greater for an elected representative whose

mandate is to act as a spokesman for the opinions and concerns of his

constituents.

40. The applicant considers that his conviction and sentence

constituted a reprisal for his assertion of his Turkish ethnic origin.

He submits that the use of the word "Turks" to identify the Moslems of

Western Thrace is frequent even in schoolbooks, in administrative

documents and in judgments. He further submits that there was no

evidence of disruption of public order. There was thus no pressing

social need for his conviction and sentence.

41. The applicant concludes that his conviction and sentence were a

disproportionate interference with his freedom of expression.

42. The Government stress that freedom of expression has limits which

the applicant overstepped. The Treaty of Lausanne refers to "Moslems"

and not to "Turks". The applicant deliberately chose to use expressions

which aimed at creating feelings of hatred and hostility within the

Moslem community towards the Greek Christians and, therefore, abused

his right to freedom of expression.

43. The Government further submit that the applicant's conviction and

sentence were decided by the competent domestic courts, which found him

guilty of the offence provided for in Article 192 of the Greek Penal

Code, and argue that every conviction which is decided in accordance

with law is compatible with Article 10 para. 2 (Art. 10-2) of the

Convention.

44. The Government thus find, having regard to the State's margin of

appreciation, that the interference with the applicant's right to

freedom of expression was necessary in a democratic society within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

45. The Commission recalls that the adjective "necessary", within the

meaning of Article 10 para. 2 (Art. 10-2), is not synonymous with

"indispensable" or as flexible as "reasonable" or "desirable", but

implies the existence of a pressing social need (see, inter alia, Eur.

Court H.R., Barthold judgment of 25 March 1985, Series A no. 90,

pp. 24-25, para. 55).

46. It is true that the initial responsibility for securing

Convention rights and freedoms lies with each Contracting State.

Accordingly, Article 10 para. 2 (Art. 10-2) of the Convention leaves

the Contracting State a certain margin of appreciation in assessing

whether such a need exists, but this margin goes hand in hand with a

European supervision, embracing both the law and the decisions applying

it, even those given by independent courts (see, inter alia, Eur. Court

H.R., Observer and Guardian judgment of 26 November 1991, Series A

no. 216, p. 30, para. 59).

47. The Convention organs' task, in exercising their supervisory

function, is not to take the place of the competent national

authorities but rather to review under Article 10 (Art. 10) the

decisions they delivered pursuant to their power of appreciation. This

does not mean that the supervision is limited to ascertaining whether

the respondent State exercised its discretion reasonably, carefully and

in good faith;

what the Convention organs have to do is to look at the interference

complained of in the light of the case as a whole and determine whether

it was proportionate to the legitimate aim pursued and whether the

reasons adduced by the national authorities to justify it were relevant

and sufficient (Eur. Court H.R., Barthold judgment, op. cit.).

48. In doing so, the Convention organs have to satisfy themselves

that the national authorities did apply standards which were in

conformity with the principles embodied in Article 10 (Art. 10) and,

moreover, that they based themselves on an acceptable assessment of the

relevant facts (Eur. Court H.R., Jersild judgment of 23 September 1994,

Series A no. 298, para. 31).

49. In the present case, the Commission has therefore examined

whether there was a pressing social need to convict and sentence the

applicant for having distributed printed material referring to the

Moslem population of Western Thrace as "Turks" and whether the

conviction and sentence were proportionate to the aim pursued.

50. The Commission recalls that freedom of expression constitutes one

of the essential foundations of a democratic society, one of the basic

conditions for its progress and for the development of everyone.

Subject to paragraph 2 of Article 10 (Art. 10-2), it is applicable not

only to "information" or "ideas" that are favourably received or

regarded as inoffensive or as a matter of indifference, but also to

those that shock, offend or disturb the State or any sector of the

population. Such are the demands of that pluralism, tolerance and

broadmindedness without which there is no "democratic society" (see,

inter alia, Eur. Court H.R., Vereinigung Demokratischer Soldaten

Österreichs and Gubi judgment of 19 December 1994, to be published in

Series A no. 302, para. 36).

51. This being so, the Commission emphasises the crucial importance

of freedom of expression for an elected representative of the people

who represents his electorate, draws attention to their preoccupations

and defends their interests (Eur. Court H.R., Castells judgment of

23 April 1992, Series A no. 236, p. 22, para. 42). Accordingly, the

institution of criminal proceedings for statements made in the context

of an electoral campaign is justified only insofar as it is not

possible for the State to react in a suitable and adequate manner by

way of the means usually available to democratic States (see Castells

v. Spain, Comm. Report 8.1.91, para. 69, Eur. Court H.R., op. cit.).

52. In the present case, the Commission notes that the applicant has

been convicted and sentenced for calling "Turks" the people belonging

to the Moslem minority of Western Thrace.

53. The Commission assumes that, in order to avoid rifts between the

Christian and Moslem population of Western Thrace and to maintain their

peaceful coexistence, moderation in political discussions may be

desirable. However, it cannot find that, in the circumstances of this

case, and in the absence of clear elements of incitement to violence,

the imposition of a prison sentence for the use in public, namely in

an election campaign, of the term "Turk" in respect of the Moslem

minority in that area can reasonably be regarded as a "necessary"

measure in a democratic society.

54. Accordingly, the Commission concludes that the reasons advanced

by the Government do not suffice to show that the interference with the

applicant's freedom of expression was proportionate to the legitimate

aim pursued. Thus it was not justified under Article 10 para. 2

(Art. 10-2) of the Convention.

CONCLUSION

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

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

11 July 1991 Introduction of application

27 September 1991 Registration of application

Examination of admissibility

3 May 1993 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

8 and 29 October 1993 Government's observations

18 November 1993 Applicant's observations in reply

14 April 1994 Commission's decision to hold a hearing

20 June 1994 President's grant of legal aid

1 July 1994 Hearing on admissibility and merits

1 July 1994 Commission's decision to declare

application in part admissible and in part

inadmissible

8 July 1994 Commission's adoption of text of decision

on admissibility

Examination of the merits

13 July 1994 Decision on admissibility transmitted to

parties.

3 December 1994 Examination of state of proceedings

4 April 1995 Adoption of Report

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AHMET v. Greece

AHMET v. Greece

LEXI