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)