Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18877/91

by Sadik AHMET

against Greece

The European Commission of Human Rights sitting in private on

1st July 1994, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

D. SVÁBY

G. RESS

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 11 July 1991 by

Sadik AHMET against Greece and registered on 27 September 1991 under

file No. 18877/91;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 8 and

29 October 1993 and the observations in reply submitted by the

applicant on 18 November 1993;

- the parties' oral submissions at the hearing on 1st July 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek national born in 1947. He is a physician

and resides in Komotini.

The facts of the case as submitted by the parties may be

summarised as follows:

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.

The applicant and B. were subsequently charged with misinforming

the electoral body, an offence established by 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.

On 25 January 1990 the applicant appeared before the 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.

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.

On 26 January 1990 the applicant was acquitted of misinformation

but found guilty of disrupting public peace. The Court 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. The Court held that the applicant had

thereby aimed at creating feelings of hatred and enmity and at dividing

the population. According to the judgment, 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 co-existence of the Greek

Christian and the Greek Moslem communities.

The applicant was sentenced by the Criminal Court to 18 months'

imprisonment, not convertible into a fine. His request to the Court to

suspend the sentence pending his eventual appeal was rejected, inter

alia, on the ground that the applicant was dangerous and that there was

a risk that he would flee to Turkey.

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

On 27 January 1990 the applicant appealed against the above

judgment.

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.

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

confirmed the first instance judgment, declaring the applicant guilty

of disrupting public peace.

The Court found that the applicant had deliberately described the

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

1923 Treaty of Lausanne refers 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 creating

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

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

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

re-elected to the Greek Parliament.

On 24 October 1990 the applicant appealed to the Court of

Cassation (Areios Pagos).

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 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.

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.

COMPLAINTS

1. The applicant alleges that he was unlawfully deprived of his

liberty between 26 January and 30 March 1990 and invokes Article 5

paras. 1, 3 and 4 of the Convention.

2. The applicant complains under Article 6 para. 1 of the Convention

that insufficient reasons were given by the courts to justify his

conviction.

3. The applicant complains that the proceedings against him were not

fair and invokes Article 6 paras. 1, 2, 3 and Article 14 of the

Convention.

4. The applicant submits that his conviction for disrupting public

peace, by distributing printed material referring to the Moslem

population of Western Thrace as "Turks", amounts to a violation of his

freedom of thought, expression and assembly, and is discriminatory. He

invokes Articles 9, 10, 11 and 14 of the Convention.

5. Finally, the applicant complains, under Article 3 of Protocol No.

1, that due to his imprisonment in February and March 1990 he was

unable to participate in the campaign for the legislative election of

April 1990.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 July 1991 and registered on

27 September 1991.

On 3 May 1993 the Commission decided to bring the application to

the notice of the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application, limited to the issue under Article 10 of Convention.

The Government submitted their observations on 8 October 1993 and

their supplementary observations on 29 October 1993.

The applicant submitted observations in reply on 18 November

1993. On 14 April 1994 the Commission decided to hear the parties as

to the admissibility and merits of the case.

At the oral hearing, which was held on 1 July 1994, the parties

were represented as follows :

For the Government :

Mr. Vassilios KONTOLAIMOS Legal Assessor at the Legal

Council of State, Agent

Ms. Vassilia PELEKOU Legal Representative at the Legal

Council of State, Adviser

For the applicant :

Prof. Tekin AKKILIOGLOU Lawyer practising in Ankara,

The applicant was also present at the hearing.

THE LAW

1. The applicant, who was detained between 26 January and 30 March

1990, complains that this deprivation of liberty was contrary to

Article 5 paras. 1, 3 and 4 (Art. 5-1, 5-3, 5-4) of the Convention.

Article 5 para. 1 (Art. 5-1) of the Convention guarantees the

right to liberty and security of person, subject to certain exceptions,

such as the lawful detention of a person after conviction by a

competent court, within the meaning of sub-paragraph (a) of the

provision. Article 5 paras. 3 and 4 (Art. 5-3, 5-4) provide certain

guarantees of judicial control of provisional release or detention on

remand pending trial.

The Commission notes that the applicant was detained after having

been sentenced by the first instance court to 18 months' imprisonment.

He was released after the Court of Appeal reviewed this sentence,

reducing it to 15 months' imprisonment, convertible to a fine. The

Commission finds that the applicant was deprived of his liberty "after

conviction by a competent court" within the meaning of Article 5 para.

1 (a) (Art. 5-1-a) of the Convention.

The Commission also finds no evidence in the case to suggest an

infringement of paragraphs 3 and 4 of Article 5 (Art. 5-3, 5-4): The

applicant was not detained on remand prior to his trial and the

judicial control of the lawfulness of his subsequent detention after

conviction was provided by the first instance court (cf. Eur. Court

H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A

no. 12, p. 40, para. 76).

It follows that this part of the application is manifestly ill-

founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant next complains under Article 6 para. 1

(Art. 6-1) of the Convention of an unfair hearing in the determination

of the criminal charges against him, in that , allegedly, insufficient

reasons were given by the courts to justify his conviction.

However, again, the Commission finds no evidence in the case to

substantiate this complaint.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further complains of the attitude of some of the

judges and of not having received a written copy of the first instance

judgment in time for the preparation of his appeal. He alleges that

witnesses on his behalf were not duly heard by the courts.

The appliacnt invokes Article 6 paras. 1, 2, 3 (b) and (d)

(Art. 6-1, 6-2, 6-3-b, 6-3-d) of the Convention, which provides certain

guarantees to the defence in a criminal case, and Article 14 (Art. 14),

which prohibits discrimination in the securement of Convention rights

and freedoms.

However, the Commission is not required to decide whether the

facts alleged by the applicant disclose any appearance of a violation

of these provisions. Under the terms of Article 26 (Art. 26) of the

Convention, "the Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law".

For this condition to be fulfilled, it is not sufficient for the

applicant merely to have presented his case to the various courts

competent to deal with it. The complaint made before the Commission

must also have been raised, at least in substance, during the

proceedings in question. On this point, the Commission refers to its

constant case-law (see, for example, No. 12164/86, Dec. 12.10.88,

Agneessens v. Belgium, D.R. 58 p. 63).

In the present case, the Commission notes that none of these

complaints has been raised either formally or even in substance during

the proceedings before the Court of Cassation. In addition, the

examination of the case has disclosed no circumstance which, according

to the generally recognised principles of international law, might have

absolved the applicant from raising these complaints during the

cassation proceedings.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies, in accordance with Article 27

para. 3 (Art. 27-3) of the Convention.

4. The applicant also complains that his conviction for disrupting

public peace, by distributing printed material referring to the Moslem

population of Western Thrace as "Turks", amounts to a violation of his

freedom of thought, expression and assembly, and is discriminatory. He

invokes Articles 9, 10, 11 and 14 (Art. 8, 10, 11, 14) of the

Convention, which guarantee these freedoms and prohibit discrimination

respectively.

The Commission notes that the applicant's conviction involved his

writings. Consequently, it is essentially the exercise of the

applicant's freedom of expression with which there has been an

interference.

The relevant part of Article 10 (Art. 10) of the Convention

provides as follows:

"1. Everyone has the right to the 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 exercice 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 ...".

The respondent Government considers that the applicant submitted

his application out of time on 27 September 1991, which is more than

six months after the date on which the final decision regarding the

applicant's case was given by the Court of Cassation on 15 February

1991. However, the application was lodged with the Commission on 11

July 1991, five months after the cassation decision, and therefore

within the six month time-limit provided for by Article 26 (Art. 26)

of the Convention.

The Government next submits, in respect of Article 26 (Art. 26)

of the Convention, that the applicant has not exhausted domestic

remedies because at no time at first instance, on appeal or in

cassation did the applicant raise the issues under the Convention, even

in substance.

In reply the applicant maintains that the breach of which he is

complaining consists of a continuing violation, and that therefore he

was absolved from the obligation of raising the complaint before the

Greek courts.

The Commission observes that Article 26 (Art. 26) of the

Convention "should be applied with some degree of flexibility and

without excessive formalism ; it is sufficient that the complaints

intended to be made subsequently before the Convention organs should

have been raised at least in substance and in compliance with the

formal requirements and time-limits laid down in domestic law" (Eur.

Court H.R., Castells judgment of 23 April 1992, Series A no. 236, p.

19, para. 27).

It is true that before the Court of Cassation the applicant did

not rely expressly on Article 10 (Art. 10) of the Convention, which is

directly applicable under Greek law; nor did he invoke the provisions

of Article 14 of the Greek Constitution, which also guarantees the

right to freedom of expression. However, while basing his case on the

narrower domestic criminal law provision of Article 192 of the Greek

Penal Code, the applicant claimed the right to use the words "Turk(s)"

or "Turkish" to identify the Moslems of Western Thrace.

The Commission considers that this indicates an issue falling

within the scope of freedom of expression. In claiming a right to use

these terms the applicant was formulating a complaint which was linked

to the alleged violation of Article 10 (Art. 10) of the Convention.

Therefore, "he provided the national courts with the opportunity which

is in principle intended to be afforded to Contracting States by

Article 26 (Art. 26), namely the opportunity of putting right the

violations alleged against them" (Eur. Court H.R., Guzzardi judgment

of 6 November 1980, Series A no. 39, p. 27, para. 72).

Accordingly, the Commission considers that the applicant did

invoke before the Greek courts, at least in substance, the complaints

relating to Article 10 (Art. 10) of the Convention which he now puts

to the Commision. He may therefore be said to have exhausted domestic

remedies.

The Commission concludes that the applicant has complied with the

requirements of Article 26 (Art. 26) of the Convention.

As regards the merits of the complaint, the Government maintains

that the interference was prescribed by law, in this case Article 192

of the Penal Code. The Government asserts that the proceedings

instituted against the applicant and his ensuing conviction pursued the

legitimate aim of protecting public order, within the meaning of

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

The applicant does not dispute the existence of a legal basis for

his conviction, but he maintains that the conviction and punishment

inflicted upon him were without any legitimate purpose under the

Convention and alleges that they constituted a kind of reprisal for his

assertion of his Turkish ethnic origin. He also maintains that his

conviction and the penal sanctions inflicted upon him were not

necessary in a democratic society. He stresses the key role played by

freedom of expression in a democratic society. The importance of this

freedom is even greater for an elected representative whose mandate is

to act as spokesman for the opinions and concerns of his constituents.

The Commission considers that the applicant's complaints, that

his conviction for disrupting public peace amounts to a violation of

his rights under the Convention, raise complex issues of fact and law,

the determination of which should depend on a full examination of the

merits. These complaints cannot therefore be regarded as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other ground for declaring this part of the case

inadmissible has been established.

5. Finally, the applicant complains, under Article 3 of Protocol No.

1 (P1-3), that he was prevented from participating in the campaign for

the legislative election of April 1990 because of his detention.

Article 3 of Protocol No. 1 (P1-3) provides for free elections

under conditions which will ensure the free expression of the opinion

of the people in the choice of the legislature.

The Commission notes that this matter was not submitted to the

competent court, which is the Special Supreme Court, and consequently

this part of the application is inadmissible for non-exhaustion of

domestic remedies.

It follows that this part of the application must be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint that his conviction for having

disrupted public peace amounts to a violation of his rights set

forth in the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AHMET v. GREECE

AHMET v. GREECE

LEXI