Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24348/94

by Panayiotis GRIGORIADES

against Greece

The European Commission of Human Rights sitting in private on

4 September 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

P. LORENZEN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 March 1994 by

Panayiotis GRIGORIADES against Greece and registered on 7 June 1994

under file No. 24348/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

- the Commission's decision of 13 January 1995 to communicate the

application;

- the observations submitted by the respondent Government on

19 April 1995 and the observations in reply submitted by the

applicant on 15 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1964 and a journalist

by profession. In the proceedings before the Commission he is

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

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

1. Particular circumstances of the case

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

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

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

collision with his superiors. Criminal and disciplinary proceedings

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

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

had to serve additional time in the army.

Considering that the extension of his military service was

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

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

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

received a letter in which the applicant explained his stance.

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

commander instituted new criminal proceedings against the applicant

under Article 74 of the Army Criminal Code.

On 12 May 1989 the applicant presented himself before the

investigating officer, a member of the army judicial corps, who

remanded him in custody for desertion.

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

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

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

questioned the constitutionality of the second charge, on the ground

that the relevant criminal provision was not lex certa and the

expression of criticism could not be considered to constitute an

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

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

reserve officer on probation, testified that the applicant on

10 May 1989 had given him a copy of the letter he had sent to the

commander of their unit.

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

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

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

insult charge read as follows:

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

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

reserve officer on probation, a two-page typed personal

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

the knowledge of the latter on the same day and which

contained, inter alia, the following phrases contemptuous

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

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

remains a criminal and terrorist mechanism which, by

creating an atmosphere of intimidation and reducing to

tatters the spiritual welfare of the radical youth, clearly

aims at transforming people to mere parts of a mechanism of

domination which ruins human nature and transforms human

relations from relations of friendship and love to

relations of dependence, through a hierarchy of fear guided

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

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

willingly insult in this manner the Greek Army as a

constitutionally entrenched institution of the Nation?"

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

faith belief that he was engaging in permissible criticism,

in accordance with Article 14 of the Constitution currently

in force?"

The court, by unanimous vote, answered the first question

affirmatively and the second negatively. The applicant was found guilty

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

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

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

sentence of three months imprisonment for the second offence. The

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

ten months.

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

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

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

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

previously rejected the defence's objection as to the

unconstitutionality of the relevant provision. A sentence of three

months imprisonment was imposed on the applicant. He was immediately

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

his sentence.

On 20 September 1989 the applicant appealed in cassation on the

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

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

general criticism of the army cannot be considered to constitute an

insult. He also claimed that the provision violated, because of its

vagueness, the Constitution, not being lex certa and introducing an

impermissible limitation of freedom of expression.

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

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

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

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

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

applicant's case.

In a decision issued on 22 September 1993 the Plenary considered

that Article 74 of the Code described in a sufficiently circumscribed

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

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

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

by which injury is brought to bear on the esteem and

respect for and the repute of the protected value. To

qualify as insult, a manifestation must bear contempt,

taunting and denigration; simply calling into question the

protected value is not sufficient. This value is the army

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

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

institution entrusted with the defence of the freedom and

independence of the country and the necessary training of

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

Criminal Code does not specify the nature of the insult nor

the manner in and means by which the insult is brought

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

criminalise insults of a certain nature or committed in a

certain manner or by certain means. Every insult of the

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

does not create any uncertainty as to the elements of the

offence. Any further specification would have limited the

scope of the criminal prohibition, which the legislator did

not intend. Article 14 of the Constitution, which protects

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

legislator from criminalising every instance of insulting

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

Article 14 is subject to limitations provided by the law

....."

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

conviction.

2. Relevant domestic law

Article 74 of the Army Criminal Code provides the following:

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

army or an emblem of its command is punished with

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

he is also deprived of his rank."

COMPLAINTS

1. The applicant complains under Article 7 of the Convention that

Article 74 of the Army Criminal Code is not lex certa.

2. The applicant also complains of a violation of Article 10 of the

Convention in that his conviction was not provided by a lex certa and

was not necessary in a democratic society.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1994 and registered

on 7 June 1994.

On 13 January 1995 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on admissibility and merits.

The Government's observations were submitted on 19 April 1995,

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

15 June 1995 the applicant submitted his observations in reply.

THE LAW

The applicant complains that he was convicted of insulting the

army under Article 74 of the Army Criminal Code in violation of

Articles 7 and 10 (Art. 7, 10) of the Convention.

Article 7 para. 1 (Art. 7-1) of the Convention 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. ....... "

Article 10 (Art. 10) of the Convention 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."

The Government submit that the applicant has not exhausted

domestic remedies in connection with his complaint under Article 10

(Art. 10) of the Convention. Although the Convention is part of

domestic law and the right to freedom of expression is guaranteed by

the Greek Constitution, the applicant did not raise his complaint

expressly or in substance before the domestic courts. In any event, the

applicant's complaints under Articles 7 and 10 (Art. 7, 10) of the

Convention are manifestly ill-founded.

As regards the lawfulness of the interference with the

applicant's freedom of expression and the complaint under Article 7

(Art. 7) of the Convention, the Government submit that Article 74 of

the Army Criminal Code is lex certa. The wording of the provision is

sufficiently clear to enable all persons affected to regulate their

conduct. Its meaning becomes even clearer when read in conjunction with

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

of Cassation interpreting Article 181 of the Criminal Code which

provides for the related offence of insulting a public authority or a

national emblem.

As regards the necessity of the interference, the Government

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

contents of the letter and the possibility that the contents of the

letter would be widely known, since the applicant had given a copy to

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

lenient and stress in this connection that the applicant himself did

not request a suspended sentence, having obviously preferred the

solution adopted by the court of appeal, according to which the

applicant's provisional detention was counted against his sentence.

Given the wide margin of appreciation enjoyed by the national

authorities in the field, the Government argue that the applicant's

conviction was necessary in a democratic society in the interests of

national security, territorial integrity and public safety.

The applicant submits that both his complaints have been raised

before the national courts. He also argues that Article 74 of the Army

Criminal Code is not lex certa. Its overbroad wording and the absence

of any relevant case-law results in legal uncertainty. The case-law of

the army courts referred to by the Government consists of three

decisions which have not contributed in any manner to the clarification

of the meaning of the provision, while the case-law of the Court of

Cassation under Article 181 of the Criminal Code is irrelevant.

The applicant further argues that his conviction was not

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

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

particularly wide in the army context where human rights risk being

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

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

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

acquitted.

The Commission recalls that, in accordance with its case-law,

domestic remedies have been exhausted if the applicant has submitted

in substance his complaint before the highest domestic court, even

without particular reference to the Convention (No. 7299/75 and

7496/76, Dec. 4.12.79, D.R. 18 p. 5). It considers that in the present

case the applicant has in substance raised his complaints before the

Court of Cassation. More in particular, the applicant submitted that

the vagueness of Article 74 of the Army Criminal Code introduced an

impermissible limitation of freedom of expression. He also argued that

the provision should be applied in his case in a manner which would

permit general criticism of the army. In these circumstances, the

Commission considers that the applicant has exhausted domestic remedies

in accordance with Article 26 (Art. 26) of the Convention.

In the light of the parties' observations, the Commission further

considers that the application raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. The application cannot, therefore, be

regarded as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground

for declaring it inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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GRIGORIADES v. GREECE

GRIGORIADES v. GREECE

LEXI