CONCURRING OPINION OF JUDGES BERNHARDT AND WILDHABER

In paragraph 37 of its judgment, the Court reiterates that the relevant law must be formulated with sufficient precision. Earlier cases have repeatedly stated that, where a law confers a discretion, the scope of the discretion and the manner of its exercise must be indicated with sufficient clarity [5] . In the instant case, the issue is not so much the scope of the discretion but rather the alleged vagueness of the law. What the Court has said with respect to discretion could usefully be expanded so as to include also the problem of vagueness of the instant case. After the Grigoriades case therefore, th e rule could be formulated as follows:

“A law that uses general terms or confers a discretion is not in itself inconsistent with the requirement of sufficient precision and foreseeability, provided that the terms used are not too vague and the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against interference.”

CONCURRING OPINION OF JUDGE JAMBREK

1. The key reasons for the finding of a violation in the present case are to be found in paragraph 47 of the judgment. There, the point was made that critical remarks were made “ in the context” of a general and lengthy discourse critical of army life and the army as an inst itution, that they were not published or disseminated to a wider audience, that they were not directed against the recipient or any other person, and that therefore their impact on military discipline was insignificant. It is the aim of this opinion to ame nd and elaborate on these reasons in some respects.

2. A number of remarks made by the applicant and described in the judgment as “ strong”, “ intemperate” or “ insulting” may be characterised as “ opinions”, i.e., subjective attitudes whereby facts and idea s are assessed, in contrast to factual claims. The protection of “ opinions” by Article 10 of the Convention relates both to their substance and to their form; the fact that their wording is offensive, shocking, disturbing or polemical does not take them ou tside the scope of protection.

3. In the proceedings in the Greek courts the impugned remarks were characterised as “ insults”. The Court notes that they were not directed against the recipient commanding officer, and that he himself considered them “ insul ting to the armed forces”. The legal concept of an “ insult” protects mainly personal honour. State institutions, and the army in particular, do not possess “ personal honour” to be protected as a personality right. In this sense, the legitimate aim of the i nterference with the applicant’s freedom of expression could hardly be the “ protection of the rights and freedoms of others”.

4. The remarks made by the applicant come close to the concept of a “ collective insult” which is not directed at any individual. In the present case the critical and even derogatory remarks were directed at the army as a national institution, respect for which is protected by Greek law. According to the Court of Cassation judgment of 22 September 1993, the protected value is not onl y the army as an organisation, but also the army as an idea, thus symbolically related to “ the defence of the freedom and independence of the country”.             

5. Defamation of the military may of course have an objective impact on military discipline. For that reason the army should also be protected against “ insults” which aim at degrading its public acceptance and may thereby undermine fulfilment of its functions. On the other hand, the army, like other State institutions, should not be shielded from criticism . Nor may permissible criticism on relevant issues be prevented by fear of punishment (compare the judgment of the German Constitutional Court, BVerfGE 93, 266, “ Soldiers are murderers”).

6. I also agree, in general terms, with the logic of the American “ flag burning” cases where, inter alia , the public interest to show proper respect for the national emblem could not justify government interference with the symbolic act of casting contempt upon the American flag. This act may be considered analogous to a “ collective insult”, directed at highly respected national values (see the following judgments of the United States Supreme Court: Street v. New York , 394 U.S. 576 (1969) ; Texas v. Johnson , 491 U.S. 397 (1989) ; United States v. Eichman , 496 U.S. 310 (199 0)). “ Symbolic speech”, offensive even to the supreme national values, in my view deserves, mutatis mutandis, protection under Article 10 of the Convention whenever an interference is not proportional and necessary in a democratic society.

7. I would als o suggest, as an obiter dictum , that limitations of the Convention, restricting the exercise of the right to freedom of expression, should be applied – and here I quote from the opinion of Mr Justice Jackson in Board of Education v. Barnette , 319 U.S. 624 (1943) – “ with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organisation ... Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order” (quoted in Street v. New York , 394 U.S. 576 (1969).