JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND PETTITI

( Translation )

We voted with the minority against finding a violation because we consider that the Grand Chamber's decision departs from the European Cour t's case-law.

It has always been accepted that, when applying Article 10, the Court must take both paragraphs of that Article into account.

Interference by a State may be justified on public-order grounds.

It has always been accepted that military and pris on discipline come within the sphere of public order and require rules that differ from those normally applying.

Every civilised State with an army has a military code on its statute book. Such codes have never been outlawed by any international instrument . They are based on the discipline to which soldiers and particularly officers in active service or in reserve are subject for so long as they have service obligations.

In all States it is an offence to insult the army. In every European State, the State, the army and patriotic public opinion demand that respect be shown for the nation's army, at least by its officers.

The case-law of the institutions of the European Convention on Human Rights on conscientious objectors is consistent with that approach ( ide m with regard to military courts; see the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77). The Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 41, § 100 is instructive as to th e Court’s position:

“Of course, the freedom of expression guaranteed by Article 10 applies to servicemen just as it does to other persons within the jurisdiction of the Contracting States. However, the proper functioning of an army is hardly imaginable wi thout legal rules designed to prevent servicemen from undermining military discipline, for example by writings …”

It is not, therefore, possible to compare the freedom of expression of a citizen who is no longer in the army with the more limited freedom of expression of a soldier required to respect rank while doing national service. On the other hand, historians are totally free to criticise the army.

Military justice is not prohibited by the European Convention on Human Rights. Military discipline is by i ts nature necessary in a democratic society, otherwise anarchy or anti-democratic subversion ensues, contrary to the aims of the Convention.             

All the member States of the Council of Europe have disciplinary and sanction systems comparable to Greece's, whic h are acceptable even on the proportionality principle. To hold otherwise would be to change the very basis of the European Convention on Human Rights and to construe “public order” wrongly, both under domestic law and when concerned with the concept of Eu ropean public order.

There is a risk that the Court’s judgment will be misunderstood by the member States. Permitting a soldier or officer who still has military service obligations to publish material presenting military service as a criminal institution, without any risk of the soldier or officer responsible being prosecuted by the military or judicial authorities under the Military Code, seems unwise. The Court has relied too heavily on the sole criterion of the nature of the letter.

In our opinion, the Grand Chamber has distorted the meaning of the letter and in so doing has not followed the Court’s case-law precluding any reopening of a national court’s finding of fact where such finding is not contrary to the Convention. The domestic courts, after anal ysis of the letter, found that it was intended for the applicant’s superiors. In our view the Court misconstrued the letter in holding that it was personal, private and not addressed to the military authorities.

As the letter contained a refusal to perform the additional period of service, it was official. As a result the applicant had to be discharged, which required that administrative steps be taken. Save on pain of prosecution for abuse of office, the officer could not withhold it and keep it quiet. He had a duty to bring it to the attention of his superiors. The fact that Mr Grigoriades did not publicise the letter and that it contained no insulting remarks about its addressee is wholly irrelevant to the application of Article 10 (paragraph 45 contradic ts paragraph 44).

The letter necessarily came within the scope of acts covered by military disciplinary regulations. The whole of paragraph 45 results in an erroneous justification of Mr Grigoriades’ conduct and a condemnation of the Greek State that fails to take into account paragraph 2 of Article 10.

Yet it is accepted in Europe that discipline is essential to maintain the authority of the army and that the army is essential to ensure that democracy is protected from subversion, in accordance with one of the major objectives of the European Convention on Human Rights. The positive results obtained by the international forces in Bosnia emphasise the need to ensure respect for their professional code of ethics, especially as they have for a number of years agreed to incorporate teaching on human rights.