SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 50776/99 and 52912/99 by Mehmet AGGA against Greece

The European Court of Human Rights, sitting on 20 September 2001 as a Chamber composed of

Mr A.B. Baka , President , Mr C.L. Rozakis , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above applications introduced on 31 August 1999 and 23 November 1999 respectively and registered on 7 September 1999 and 25 November respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Agga, is a Greek national, born in 1932 and living in Xanthi  (northern Greece). He is represented before the Court by Mr H. Aga and Mr S. Emin, lawyers practising in Xanthi and Komotini.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1990 one of the two Moslem religious leaders of Thrace, the Mufti of Xanthi, died. On 15 February 1990 the local Prefect ( Νομάρχης ) appointed the applicant to act as a deputy ( τοποτηρητής ) .

In August 1990 the two independent Moslem Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise themselves elections at the mosques on 17 August 1990 after the prayers. On that date the applicant was chosen to be the mufti of Xanthi by those attending Friday prayers at the mosques.

On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a Legislative Act ( πράξη νομοθετικού περιεχομένου ) by which the manner of selection of the Muftis was changed. Law no. 1920/1991 retroactively validated the Legislative Act of 24 December 1990.

On 20 August 1991, in accordance with the new regulations, the Greek State appointed another Mufti. The applicant refused to step down.

Five sets of criminal proceedings were instituted against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion”. The Court of Cassation, considering that there might be disturbances in Xanthi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the proceedings should take place in other cities. The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses.

First set of proceedings

On 17 January 1994 criminal proceedings were instituted against the applicant on the ground that on 11 January 1993 and 19 April 1993 he had issued messages in the capacity of the mufti of Xanthi.

On 28 June 1996 the single-member first instance criminal court (Μονομελές Πλημμελειοδικείο) of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2206/1996). The applicant appealed.

Second set of proceedings

On an unspecified date the applicant was charged for having issued messages in the capacity of the mufti of Xanthi on 3 January 1994, 19 January 1994 and 10 February 1994.

On 28 June 1996 the single-member first instance criminal court of Agrinio found the applicant guilty and sentenced him to ten months’ imprisonment (decision no. 2207/1996). The applicant appealed.

On 29 April 1998 the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Agrinio upheld the applicant’s conviction in the first and second sets of proceedings. It imposed a global sentence of six months’ imprisonment and converted it into a fine (decision no. 682/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention.

Third set of proceedings

On 20 January 1996 a third set of proceedings was instituted against the applicant for the same offence on the ground that on 3 May 1995, 11 November 1995, 13 December 1995, 30 December 1995 and 17 January 1996 he issued messages in the capacity of the mufti of Xanthi.

On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and sentenced him to twelve months’ imprisonment (decision no. 1336/1997). The applicant appealed.

On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction and imposed a sentence of eight months’ imprisonment. The court converted this sentence into a fine (decision no. 641/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention.

Fourth set of proceedings

On 10 September 1996 a fourth set of proceedings was instituted against the applicant on the ground that on 8 August 1995 he had issued a message in the capacity of the mufti of Xanthi.

On 3 April 1997 the single-member first instance criminal court of Lamia found the applicant guilty and imposed on him an eight months’ prison sentence (decision no. 1335/1997). The applicant appealed.

On 25 February 1998 the three-member first instance criminal court of Lamia upheld the applicant’s conviction but reduced the prison sentence to six months and converted it into a fine (decision no. 640/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention.

Fifth set of proceedings

On an unspecified date a fifth set of proceedings was instituted against the applicant on the ground that on 6 March 1994, 15 May 1994, 14 August 1994, 22 November 1994, 24 December 1994 and 9 January 1995 he had issued messages in the capacity of the mufti of Xanthi.

On 7 May 1996 the single-member first instance criminal court of Thessaloniki found him guilty and sentenced him to ten months’ imprisonment (decision no. 23145/1996). The applicant appealed.

On 5 November 1998 the three-member first instance criminal court of Thessaloniki upheld the applicant’s conviction but reduced the prison sentence to eight months and converted it into a fine (decision no. 14370/1998). The applicant appealed in cassation. He alleged that his conviction amounted to a violation of Articles 6, 9, 10 and 14 of the Convention.

The judgments given by the Court of Cassation

On 12 March 1999 the Court of Cassation rejected the applicant’s appeals concerning the first, second, third and fourth sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9, 10 and 14 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgments nos. 592/1999 and 594/1999).

On 2 June 1999 the Court of Cassation rejected the applicant’s appeal concerning the fifth set of proceedings for the same reasons set out in its judgments nos. 592/1999 and 594/1999 (judgment no. 1133/1999).

B. Relevant domestic law and practice

1. International treaties

Article 11 of the Treaty of Peace of Athens between Greece and others, on the one hand, and the Ottoman Empire, on the other, which was concluded on 17 May 1913 and ratified by the Greek Parliament by a law published in the Official Gazette on 14 November 1913, provides as follows:

(original)

« La vie, les biens, l’honneur, la religion et les coutumes de ceux des habitants des localités cédées à la Grèce qui resteront sous l’administration hellénique seront scrupuleusement respectés.

Ils jouiront entièrement des mêmes droits civils et politiques que les sujets hellènes d’origine. La liberté, la pratique extérieure du culte seront assurées aux Musulmans (...)

Aucune atteinte ne pourra être portée à l’autonomie et à l’organisation hiérarchique des communautés musulmanes existantes ou qui pourraient se former, ni à l’administration des fonds et immeubles qui leur appartiennent (...)

Les Muftis, chacun dans sa circonscription, seront élus par les électeurs musulmans (...)

Les Muftis, outre leur compétence sur les affaires purement religieuses et leur surveillance sur l’administration des biens vacoufs , exerceront leur juridiction entre musulmans en matière de mariage, divorce, pensions alimentaires ( néfaca ), tutelle, curatelle, émancipation de mineurs, testaments islamiques et successions au poste de mutévelli ( Tévliét ).

Les jugements rendus par les Muftis seront mis à exécution par les autorités helléniques compétentes.

Quant aux successions, les parties Musulmanes intéressées pourront, après accord préalable, avoir recours au mufti, en qualité d’arbitre. Contre le jugement arbitral ainsi rendu toutes les voies de recours devant les tribunaux du pays seront admises, à moins d’une clause contraire expressément stipulée. »

On 10 August 1920 Greece concluded two treaties with the principal Allied Powers in Sèvres. By the first treaty the Allied powers transferred to Greece all the rights and titles which they had acquired over Thrace by virtue of the Peace Treaty they had signed with Bulgaria at Neuilly ‑ sur ‑ Seine on 27 November 1919. The second treaty concerned the protection of minorities in Greece. Article 14 § 1 of the second treaty provides as follows:

“Greece agrees to take all necessary measures in relation to the Moslems to enable questions of family law and personal status to be regulated in accordance with Moslem usage.”

On 30 January 1923 Greece and Turkey signed a treaty for the exchange of populations. On 24 July 1923 Greece and others, on the one hand, and Turkey, on the other, signed the Treaty of Peace of Lausanne. Articles 42 and 45 of this treaty give the Moslem minority of Greece the same protection as Article 14 § 1 of the Treaty for the Protection of Minorities of Sèvres. On the same day Greece signed a Protocol with the principal Allied Powers bringing into force the two treaties concluded in Sèvres on 10 August 1920. The Greek Parliament ratified the three above-mentioned treaties by a law published in the Official Gazette on 25 August 1923.

In its decision no. 1723/1980 the Court of Cassation considered that it was obliged to apply Islamic law in certain disputes between Moslems by virtue of the Treaty of Peace of Athens of 1913, the Treaty for the Protection of Minorities of Sèvres of 1920 and the Treaty of Peace of Lausanne of 1923.

2. The legislation on the Muftis

Law no. 2345/1920 provided that the Muftis, in addition to their religious functions, would have competence to adjudicate on family and inheritance disputes between Moslems insofar as these disputes are governed by Islamic law. It also provided that the Muftis were directly elected by the Moslems who had the right to vote in the national elections and who resided in the Prefectures in which the Muftis would serve. The elections were to be organised by the State and theological school graduates had the right to be candidates. Article 6 § 8 of the law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the Muftis. Such a decree was never promulgated.

Under the legislative act of 24 December 1990 the functions and qualifications of the Muftis remain largely unchanged. However, provision is made for the appointment of the Muftis by presidential decree following a proposal by the Minister of Education who, in his turn, must consult a committee composed of the local Prefect and a number of Moslem dignitaries chosen by the State. The act expressly abrogates Law no. 2345/1920. In the act it is envisaged that it should be ratified by law in accordance with Article 44 § 1 of the Constitution.

Law no. 1920/1991 retroactively validated the legislative act of 24 December 1990.

3. Legislative acts under Article 44 § 1 of the Constitution

Article 44 § 1 of the Constitution provides as follows:

“In exceptional circumstances, when an extremely urgent and unforeseeable need arises, the President of the Republic may, on the proposal of the Council of Ministers, adopt legislative acts. These acts must be submitted to Parliament for approval ... within forty days ...”

4. Relevant provisions of the Criminal Code

Article 175 of the Criminal Code provides as follows:

“1. A person who intentionally usurps the functions of a State or municipal official is punished with imprisonment up to a year or a fine.

2. This provision also applies when a person usurps the functions of a lawyer or a minister of the Greek Orthodox Church or another known religion.”

The Court of Cassation has considered that this provision applies in the case of a former priest of the Greek Orthodox Church who continues to wear the priest robes (decision no. 378/1980). The priest in question was defrocked after he joined the Old Calendarists, a religious movement formed by Greek Orthodox priests who wanted the Church to maintain the Julian calendar. In decision no. 454/1966 the Court of Cassation considered that the offence in Article 175 of the Criminal Code is also committed by a person who purports to discharge the administrative functions of a priest. In decisions nos. 140/1964 and 476/1971 the Court of Cassation applied Article 175 of the Code to cases of persons who had purported to exercise the religious functions of an Orthodox priest by conducting services, christening children etc.

Article 176 of the Criminal Code provides as follows:

“A person who publicly wears the uniform or the insignia of a State or municipal official or of a religious minister of those referred to in Article 175 § 2 without having the right to do so ... is punished with imprisonment up to six months or a fine.”

5. The legislation on ministers of “known religions”

Ministers of the Greek Orthodox Church and other “known” religions enjoy a number of privileges under domestic law. Inter alia , the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention of the fairness of the proceedings.

2. The applicant further complains that his conviction violated his rights under Articles 9 and 10 of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention that his convictions were unfair. He submits in this connection that it had not been shown that he had discharged any of the functions of a Mufti and that the reasoning of the domestic courts was vague and contradictory. He also complains that, although the case concerned the Muslim faith, the courts did not hear any independent Muslim witnesses for the prosecution and failed to take into consideration the testimony of the defence witnesses. Finally, he complains that he was tried far away from Xanthi. As a result, he could not have easy access to the case-file and had been obliged to lodge his appeal in cassation without reading the appellate courts’ decisions.

Article 6 § 1 of the Convention provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing”.

The Court recalls that according to Article 19 of the Convention it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( Garcia Ruiz v. Spain [GC], no. 30544/96, ECHR 1999–I, p. 98, § 28).

The Court notes that the applicant was assisted by lawyers of his own choice before the domestic courts involved. He was able to put his arguments and challenge those of the prosecution at every stage of the proceedings. Moreover, he had the opportunity to examine the prosecution witnesses that appeared before the courts and to call witnesses in his defence. Finally, as regards the applicant’s complaint that he was tried in other towns than Xanthi, the Court notes that the applicant did not show that this fact caused real difficulties to his defence team. There is no evidence to suggest that the applicant was prevented from applying to the Court of Cassation and arguing his case effectively before it.

In the light of all the above, the Court considers that there is no appearance of a violation of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Article 9 of the Convention that he was convicted although the Moslems of Rodopi have the right to elect their Mufti. He also complains under Article 10 of the Convention that he was convicted for certain statements he had made.

Article 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 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.”

Article 10 of the Convention reads 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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 argue that the complaint under Article 9 of the Convention is incompatible ratione materiae or that there has been no interference with the applicant’s right to freedom of religion because Article 9 does not guarantee the applicant the right to impose on the others his understanding as to Greece’s obligations under the Treaty of Peace of Athens.

In any event, even if there had been an interference, the Government argue that it would have been justified under the second paragraph of Article 9. It was provided by law, Articles 175 and 176 of the Criminal Code. These provisions have been interpreted by the courts in a manner which rendered his conviction foreseeable. The interference served a legitimate purpose. By protecting the authority of the lawful Mufti the domestic courts sought to preserve order in the particular religious community and in society at large. They also sought to protect the international relations of the country, an area over which States exercise unlimited discretion.

The Government further contend that the interference was necessary in a democratic society. In many countries, the Muftis are appointed by the State. Moreover, Muftis exercise important judicial functions in Greece and judges cannot be elected by the people. Moreover, the Government submit that the Court of Cassation did not convict the applicant simply because he appeared as the Mufti. Given that there were two Muftis in Xanthi at the time, the courts had to convict the spurious one in order not to create tension among the Moslems, between the Moslems and Christians and between Turkey and Greece. The courts considered that the offence in Article 175 is committed when somebody actually discharges the functions of a religious minister. The courts also considered that the acts that the applicant engaged in fell within the administrative functions of a Mufti in the broad sense of the term.

The applicant disagrees with the Government’s arguments. He considers that the Treaty of Peace of Athens remains in force. The Greek Prime ‑ Minister accepted that at the Diplomatic Conference leading to the 1923 Treaty of Peace of Lausanne. Moreover, the Court of Cassation has recently confirmed the continued validity of the Treaty of peace of Athens and legal scholars hold the same view. The Moslems had never accepted the abrogation of Law no. 2345/1920. The applicant points out that the Christians and Jews in Greece have the right to elect their religious leaders. Depriving the Moslems of this possibility amounts to discriminatory treatment.

In the light of the parties’ observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints that his conviction violated his rights to freedom of religion and expression;

Declares inadmissible the remainder of the applications.

Erik Fribergh András Baka Registrar President