CONCURRING OPINION OF JUDGE VALTICOS  

(Translation)

I consider it needful to sound a warning concerning the scope of the exhaustion-of-domestic-remedies principle, which, under the terms of Article 26 of the Convention (art. 26), must be construed "according to the generally recognised rules of international law". That means that the condition concerned cannot be minimised as is sometimes envisaged.

Obviously, it has often been pointed out that the Court's case-law has evolved considerably since the Convention came into force.

In the already long period which has elapsed since the Court was set up, ideas and needs in European countries have evolved - indeed in many ways have undergone profound changes - and the Court had a duty to reflect that intellectual and moral evolution, as far as possible. That was all the more necessary - and possible - because the substantive provisions of the Convention are often - but not always - drafted in a general way which permits such evolution, sometimes even to a radical degree. There are numerous examples of this and to dwell on the point would be to push against a half-open door.

But there is one important distinction to be made. While this evolution is normal - subject to the necessary precautions being taken - with regard to the Convention's substantive provisions, it can only be exceptional and limited with regard to the procedural provisions such as the fundamental rule of international law that domestic remedies must be exhausted. The Court has already made this rule more flexible by not requiring applicants to invoke an actual provision of the Convention in the domestic courts, only its substance, before a case can validly be referred to the Court. To seek to abolish this condition, or reduce it almost to nothing, with a view to a more complete protection of human rights, would certainly be prompted by a very laudable concern for justice but a very cavalier approach to the rules of international law.

I therefore wish to emphasise the limits it would be dangerous to cross in this respect. The Court's present judgment respects those limits.

PARTLY DISSENTIN G OPINION OF JUDGE MARTENS, JOINED BY JUDGE FOIGHEL

I.   INTRODUCTION

1.   One of the essential arguments against the Court's doctrine that it has jurisdiction to examine afresh preliminary objections already rejected by the Commission is that this doctrine has rather unpalatable effects: it makes it possible, after long years of Strasbourg proceedings, for very importan t issues to remain undecided [4] .

The present case well illustrates that point. It concerns the extent of the rights of ethnic minorities in a democratic society as well as the confines of the right to freedom of expression of campaigning politicians. Thus, the issues at stake were of considerable legal importance for the community of the Council of Europe at large. They were, moreover, highly emotional questions for the applicant and his fellow-members of the minority concerned. The Strasbourg proceedings on those issues started in July 1991. Since then the applicant himself has died and now, more than five years after their commencement (and nearly two years after the Commission's report in their favour) the European Court of Human Rights drily tells his widow and the children that those issues will not be decided for no other reason than that the applicant's lawyer in the domestic proceedings did not know his job.

2.   I have voted for dismissal of the Government's preliminary objection. My primary argument for so voting was that I maintain, as a matter of principle, that the Court should leave it to the Commission to determine whether such pleas are founded or not. In the alternative I have done so for the reasons explained in paragraphs 4-14 below.

3.   Had there been a majority for dismissal of the preliminary objection I would have voted for finding a violation. I think the case is of such importance that in paragraphs 16-23 below I will also briefly outline my arguments therefor .

II.   EXHAUSTION OF DOMESTIC REMEDIES 

A. General considerations

4.   In paragraphs 65-69 of its judgment of 16 September 1996 in the case of Akdivar and Others v. Turkey (Reports of Judgments and Decisions for 1996-IV, pp. 1210-11) the Court has summarised its general doctrine on the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26). Not only summarised, but also refined. Refined in the sense that - in line with internati onal tendencies in this area [5] - it has stressed more explicitly than in previous judgments the importance of making "due allowance" for the fact that the rule is being applied "in the context of machinery for the protection of human rights". Notably paragraph 68 in fine of the Akdivar and Others judgment shows that the Court has now essentially opted for what my friend Judge Morenilla has aptly called "a flexible pro victima interpreta tion of this Article (art. 26)" [6] .

quite fits into the system for the protection of human rights as it has developed during the last decades. After all, the rule dates back to the second half of the nineteenth century, when the individual was not yet recognised as a subject of international law, and its classical function was, then, to protect State sovereignty against excessive encroachment by State ‑ to-State claims on behalf of private individuals whose rights had allegedly been violated [7] .

It would have been consistent with the essential changes which have occurred since then in the legal status of the individual under international law, especially where international law allows a victim of an alleged violation of human rights to seek redress on his own behalf, if in such cases the rule had been abandoned. Yet that has not been done.

It would, therefore, seem to me that the rule is, essentially, a relic of the original reluctance of certain States to set up an international court with the task of ensuring the fulfilment of their engagements under the Convention. In this context I refer to the Court's analysis in its De Wilde, Ooms and Versyp v. Belgium judgment [8] . Present-day conditions, however, have changed also in this respect: all member States have long since accepted the Court's jurisdiction, and - it may be added - con amore, even if, as is only natural, they sometimes resent its decisions. This salutary evolution has greatly enhanced the protection of human rights in Europe .

Against this background I find it open to doubt whether the rule of exhaustion of domestic remedies still quite fits into the system because the rule thwarts the Court's power to do justice in those cases of violation of human rights where the victim has not enjoyed proper legal assistance in the domestic sphere.

6.   Admittedly, the Court has sought to minimise this wretched effect of the rule by accepting that its requirements are met where the complaint raised before the Convention organs has been pleaded before the national courts "at least in substance".

That is, however, but a poor palliative. Firstly, because the notion "in substance" is so vague as to leave ample room for differences of opinion, as is illustrated by the Cardot case as well as by the present case. Secondly, because it does not help in those cases where even the most considerate interpretation of the pleadings before the domestic courts does not allow the conclusion that there the applicant has raised "at least in substance" the complaints he now raises before the Convention organs. Yet, the Court has adamantly refused to go further. It notably has refused to accept that the requirements of the rule must be deemed to be met if: (a) applications have been made to the appropriate domestic courts and use has been made of remedies designed to challenge decisions already given and (b) those courts were able, or even obliged, to examine the case of their own motion under the Convention [9] .

7.   In the Court's previous judgments arguments for this unyielding refusal are conspicuously lacking and even in the present judgment the majority, although challenged, has found nothing better than to repeat the pure petitio principii of paragraph 3 9 of the nearly 20-year-old Van Oost erwijck judgment cited above [10] .

For my part, I have never been able to imagine sound reasons for this V an Oosterwijck doctrine [11] . As I have already indicated in my dissenting opinion in the Cardot case: if under domestic law courts are bound to apply the Convention ex officio, the applicant by taking his case to the appropriate courts and availing himself of all possible remedies in principle provides those courts with the opportunity which the domestic remedies rule is designed to afford, namely "the opportunity of preventing or putting r ight the violations alleged" [12] .

8.   Under these circumstances it is scarcely surprising that learned authors have time and again suggested that the real grounds for such decisions as the Van Oosterwijck and the Cardot judgments are to be sought elsewhere, namely in the Court's wish to avo id a decision on the merits [13] . Similar comments may be expected in the present case. I find that rather unfortunate and an extra argument against the Court's rigid attitude in these matters.

9.   For my part I take the view that if under domestic law courts are bound or able to apply the Convention ex officio, the applicant by taking his case to the appropriate courts and availing himself of all possible remedies has in principle met the requirements of Article 26 (art. 26). I think that this squares with the rationale of the domestic remedies rule and apart from that I can see various other good reasons for accepting this view, whilst the only argument that I can see against (see paragraph 13 below) can be taken care of otherwise than by following the impugned doctrine.

10.   The reasons for the first proposition - which concerns the case where under national law domestic courts are bound to apply the Convention ex officio - have been stated already in paragraph 7 above.

11.   As to the second proposition - which concerns the case where under national law domestic courts are able (but not obliged) to apply the Convention ex officio - I agree w ith Ganshof van der Meersch [14] , who argued - as long ago as 1966 - that the system of the Convention implied that those courts were then under an obligation to apply the Convention ex officio.

I recall, firstly, that the Court has consisten tly stressed - and in paragraph 30 of the present judgment again stresses - the subsidiary character of the machinery established by the Convention: the task of securing the enjoyment of the rights and freedoms it enshrines falls in the first place to the Contracting States. Under the fundamental principle of rule of law which Article 6 of the Convention (art. 6) is intended to enshrine it is self ‑ evide nt that the domestic courts [15] of these States are - to the extent of their powers - bound to see to it that this obligation to safeguard human rights is honoured. This is confirmed by the Court's repeatedly drawing attention to the importance of incorporating the Convention into the domestic legal order and of treating its rules as directly applicable: as the Court said in paragraph 66 of its Eckle v. Germany judgment of 15 July 1982 (Series A no. 51, p. 31), in States where these conditions are fulfilled the subsidiary character of the conventional machinery of protection is "all the more pronounced", undoubtedly since in such States domestic courts are in the best position to see to it that fundamental rights are secured.

I recall, secondly, that the Court has recently, in paragraph 93 of its judgment of 23 March 1995 (preliminary objections) in the case of Loizidou v. Turkey (Series A no. 310, p. 31) stressed "the special character of the Convention as an instrument of European p ublic order ( ordre public)" [16] .

It follows that under the Convention the same rule applies as has been accepted by the Court of Justice of the European Communities wi th respect to Community law [17] : in those cases where domestic courts, under their national law, are in a position to apply the Convention ex officio, those courts must do so under the Convention. That is an obvious demand of the effectiveness both of the Convention as a constitutional instrument of European public order ( ordre public) and of the "national human right systems".

12.   I do not suggest that where national courts have neglected their duties in this respect, a complaint under Article 25 (art. 25) should lead to the finding of a violation. What I do suggest, however, is that in a case where an applicant has taken his case to the appropriate domestic courts and where, under domestic law, those courts were - either under their national law or, as indicated in paragraph 11 above, under the Convention - bound to apply the Convention even when the applicant failed to invoke it, in the Strasbourg proceedings the respondent State should not be permitted to rely on the non-exhaustion of domestic remedies rule. Admittedly, in such cases the applicant's lawyer was in default, but so were the domestic courts and under a true pro victima interpretation of Article 26 (art. 26) the latter default should prevail: I do not see why the principle of nemo auditur propriam turpitudinem allegans should not apply to States.

13.   As I said before, I can see but one objection against this liberal, pro victima interpretation of the rule of non-exhaustion in the context of the protection of human rights. This interpretation might allow an applicant to raise a complaint before the Convention organs which he deliberately omitted to mention before the domestic courts of the respondent State in order to be able to demonstrate in Strasbourg how badly human rights are protected in that State.

One can, of course, not exclude that possibility, especially in politically sensitive areas. However, one may safely assume that, as a rule, not relying on the Convention will not be the result of dolus malus but of sheer ignorance on the part of the applicant and of reprehensible incompetence on the part of his domestic lawyers. Moreover, applicants too must be presumed to be acting in good faith. The onus of alleging and establishing that the applicant deliberately refrained from relying on the Convention should therefore be on the State invoking the rule in a case where (a) the applicant has taken his case to the appropriate domestic courts, (b) the applicant before those courts has not even in substance relied on the Convention and (c) those courts were, nevertheless, bound to apply the Convention. Unless that onus is discharged in such cases the plea of non-exhaustion should be dismissed.

14.   There is one more remark to be made on the onus in the present context. In my opinion the distribution of proof is such that it is for the applicant to satisfy the Court that, in principle, the domestic courts were in a position to apply the Convention ex officio, whilst -once this burden of proof has been discharged - it is incumbent on the Government which nevertheless maintain their objection to establish that, due to the special circumstances obtaining in the concrete case, the domestic courts were not in a position to base their judgment on such ex officio application of the Convention. 

B. Application to the present case

15.   Applying the above general considerations to the case of Ahmet Sadik I note in the first place that the Convention forms an integral part of the Greek legal system, where it takes precedence over every co ntrary provision of the law [18] and that, moreover, Article 10 (art. 10) is directly applicable under Greek law. Consequently, my starting-point is that the Greek Supreme Court, when dealing with the applicant's appeal against his conviction by the Patras Court of Appeal, in principle could and should have applied Article 10 (art. 10) - as interpreted in the case-law of the European Court of Human Rights - ex officio (see paragraph 11 above).

I note in the second place that, even supposing that the Greek Supreme Court in criminal cases lacks the power to quash of its own motion, this does not necessarily imply that it cannot ex officio supplement legal arguments for grievances put forward by the appellant. In this context I recall that the grievances raised by the applicant were very broad: he maintained, inter alia, that the prosecution case should have been dismissed and that the Patras Court of Appeal had not given sufficie nt reasons for its decision [19] . It follows from the above that in assessing whether these grievances justified quashing the Court of Appeal's judgment the Supreme Court should not have restricted itself to merely examining the arguments, mainly based on domestic law and practice, put forward by the applicant's lawyer in support of those grievances, but should have examined moreover whether these grievances might justify quashing when based on the argument that taking into account the applicant's rights under Article 10 of the Convention (art. 10) the prosecution case should have been dismissed or the Patras Court of Appeal should have given better reasons for its decision. Thus supplementing the arguments would have meant, in the light of the case-law of the European Court of Human Rights, that the Greek Supreme Court should also have assessed ex officio whether the applicant's conviction and sentence were proportionate. It should have scrutinised the lower courts' judgments in the light of Article 10 (art. 10), that is: should have critically examined whether their findings of fact and their reasoning were sufficiently solid to justify convincingly the interference with the applicant's freedom of expression.

I appreciate that the Greek Supreme Court has competence to deal with questions of law only, but I am not satisfied that - as the Government have suggested - the controlling and balancing exercise involved exceeds the powers of a supreme court having competence with regard to questions of law only. Having now served for two decades as a member of such a court myself, I feel confident to say that both that scrutiny and that balancing exercise are, essentially, a strictly legal assessment of the facts established by the lower courts. Thus, the Government have failed to prove that the Greek Supreme Court could not do what it should have done (see paragraph 14 above in fine).

In sum, the applicant's appeal provided the Supreme Court with the opportunity required under Article 26 of the Convention (art. 26) of putting right a possible violation of Article 10 (art. 10). The Greek Government's exception therefore fails.

III.  THE MERITS

16.   It is obvious that the applicant's conviction and sentence constituted an interference with his rights under Article 10 para . 1 of the Convention (art. 10-1) and that this interference was justi fied under paragraph 2 (art. 10 ‑ 2) to the extent that it met the requirement implied in the words "prescribed by law" as well as that of serving a legitimate aim within the meaning of this paragraph (art. 10-2). The only question to be answered is, therefore, whether the applicant's conviction and sentence were proportionate, whether they were "necessary in a democratic society".

17.   There is no doubt that use of speech "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action" may be proscribed. The Greek courts held that the applicant had deliberately used such speech in a pamphlet of October 1989 and therefore c onvicted him [20] . It is of importance to note that this conviction was exclusively based on the applicant's repeatedly referring to the Muslim minority in Western Thrace as "Turkish": the remainder of the contents of the pamphlet was not taken into consideration. Thus, what is in issue is only whether, in the relevant circumstances of the case, the mere fact of repeatedly referring to the Muslim minority as "Turkish" justified the applicant's conviction and sentence.

18.   It is a significant feature of the present case that the impugned terminology was used in the context of a political debate by a politician campaigning for election. Moreover, and above all, it was used by a politician belonging to a specific minority who sought to win votes by stressing his leadership of that minority and by proclaiming his conviction that this minority was to be characterised not only by its religion but also by its ethnic origin, that is by its being Turkish.

19.   When criminal provisions purporting to prevent disturbance of public peace are relied on against a politician who is not only an opponent and a critic of the Government but also a member of a minority, the European Court of Human Rights should apply its highest standards of scrutiny in order to ascertain whether these provisions have been abused, as they easily may be and often are.

There is all the more reason for extreme vigilance because the criticism concerned the Government's attitude towards the minority in question and more especially their policy of denying that the minority is not only a religious but also an ethnic one.

In such cases there is no room for relying on the judgments of the national courts nor for a margin of appreciation.

20.   Against this background the decisive question is whether the Government have convincingly established, firstly, that the mere fact that the leader of a minority, in a political pamphlet which was evidently exclusively meant for that minority, repeatedly designated that minority as "Turkish" was indeed provocative of discord between majority and minority and of acts of violence between the two groups, and, secondly, that this use of the impugned designation was attributable to seditious intention.

21.   I have not been satisfied that this question may be answered in the affirmative.

The picture which arises both from some of the statements of the witnesses for the prosecution and from the comments in the Government's memorial - which, incidentally, go much further than those statements - is one of a long-standing tension between majority and minority, a tension for which presumably both sides, but certainly also the Greek authorities bear responsibility. It has not even been made plausible, let alone convincingly established that this tension exclusively or mainly resulted from the mere use of the impugned designation. There is little or no evidence for the Government's thesis on the long-range policy of secession which they see behind the impugned use of the designation "Turkish". Nor is there a scrap of evidence for the assertion that there is a direct or even an indirect causal link between the impugned terminology in the pamphlet of October 1989 and the violence and disorder of 29 January 1990. If the latter incidents are at all attributable to a reaction by the minority to earlier events [21] it would be more plausible to link them to the petty and unwise endeavours of the authorities to suppress the self-designation "Turkish".

22.   In sum, I have not been convinced that the applicant's conviction and sentence were a justifiable response to truly reprehensible use of seditious language. It follows that neither have I been convinced that the applicant's conviction and sentence were necessary in a democratic society.

23.   For these reasons I find that there has been a violation.