DISSENTING OPINION OF JUDGE S ir J ohn FREELAND, JOINED BY JUDGES RUSSO, VALTICOS, LOIZOU AND MORENILL A

1. We are unable to agree that there has been a violation of Article 10 of the Convention in this case.

2. Our disagreement centres on the question whether the interference with the applicant’s right to freedom of expression represented by his convict ion under Article 74 of the Military Criminal Code should be regarded, in the circumstances of this case, as “necessary in a democratic society” within the meaning of Article 10 § 2. Like the majority of the Court, we accept that that interference was “pre scribed by law” and that it pursued a legitimate aim, in so far as it was intended to maintain order and discipline in the armed forces.

3. As the Court pointed out in its Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994 (Series A no. 302, p. 17, § 36), Article 10 applies to servicemen just as it does to other persons within the jurisdiction of the Contracting States, but “ … the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline …”.

4. The primary purpose of military discipline is to ensure that in all circumstances, including situations of extreme stress, lawful orders from a superior in rank are unquestioningly and imme diately carried out by the serviceman to whom they are addressed. The rigidity with which military discipline is enforced, and the nature of the legal rules adopted to ensure that it is not undermined, differ from time to time and from State to State. They are no doubt conditioned by a variety of factors, including national characteristics and military traditions as well as the extent of military readiness considered necessary at the relevant time by the State concerned.

5. At the time of the events which gave rise to the applicant’s conviction, the Greek armed forces were apparently in a state of mobilisation as a consequence of circumstances existing in the area. The applicant was a reserve officer on probation holding the rank of second lieutenant. He h ad performed two years of military service, in the course of which he would undoubtedly have been trained in the requirements of military discipline. He claimed to have discovered abuse against conscripts in the course of his service, as a result of which he came into conflict with his superiors and, after disciplinary proceedings against him, was required to serve additional time in the army. On 10 May 1989, after having overstayed a period of leave and having been declared a deserter he sent to his comman ding officer, not through the post but by the hand of a taxi driver, a letter in the terms set out in paragraph 14 of the judgment. On the same day he gave a copy of the letter to a fellow reserve officer.

6. The letter included references to the army as being “… an apparatus opposed to man and society …” and “ … a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence, through a hierarchy of fear guided by an illiberal and oppressing set of Standing Orders …”. The a pplicant could not have assumed that this letter would remain a private matter as between himself and his commanding officer: quite apart from his disclosure of a copy to the fellow officer, he must have realised that it would be the duty of the commanding officer to make the contents of the letter known within the military hierarchy.

7. Whether or not the aim of the applicant throughout his letter was, as he claimed, that of “improving the living conditions of soldiers and creating the prerequisites for a more humane army”, there can surely be no doubt that some of the language which he used (see above) could reasonably be regarded by the military authorities as calling into question the legitimacy of the army as an institution and hence the extent of his willingness to obey orders emanating within it – in short, as being the language of insubordination rather than that of permissible criticism. More than that, it could reasonably be regarded as being, if left unpunished, a possible encouragement to other s oldiers to waver in their duty of obedience – a consideration which gained in importance because of the disclosure of a copy of the letter to a fellow officer and the risk that knowledge of its contents would go further.

8. In the circumstances, and hav ing regard to the margin of appreciation left to the national authorities, we consider that there was sufficient justification for treating the actions of the applicant as having a significant potential for undermining military discipline and the maintenan ce of order in the army. As regards the proportionality of the measures taken against him, it is to be noted that he was immediately released in the wake of his conviction and subsequent unsuccessful appeals, the time spent in detention on remand having co unted against his sentence of three months’ imprisonment.

9. In the light of the above, we conclude that the interference with the applicant’s freedom of expression is indeed properly to be treated as “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention and gave rise to no violation. It is no part of the Court’s function to express a view on whether the means chosen by the national authorities to deal with the applicant’s situation were or were not the most suitable, a nd we, accordingly, refrain from doing so.