DISSENTING OPINION OF JUDGE CASADEVALL

( Translation )

1. I voted in favour of finding that there has been no violation because I consider, in the light of the facts disclosed and in particular the letter se nt by the applicant to his superior, that the Greek State has not infringed its obligations under Article 10 of the Convention.

2. It is true that freedom of expression constitutes one of the fundamental pillars of any democratic society and for that reas on the States’ margin of appreciation must be delimited as strictly as possible. However, paragraph 2 of Article 10 provides that the exercise of freedom of expression, which also carries with it duties and responsibilities, may be subject to such formalit ies, conditions, restrictions or penalties as are prescribed by law and are necessary for the protection of certain legal interests.

3. Freedom of expression must include freedom to criticise, provided that the criticism is couched in terms that are not e xcessive and strike a fair balance with regard to the rights of others, order and morals. Certain remarks in the applicant’s letter to his superior, such as “…The army remains a criminal and terrorist apparatus ...” to quote but one example, clearly consti tute an insult, and even an outrage, to a State institution.

4. Since the case concerned the Greek army, in which the applicant was a probationary reserve officer with the rank of second lieutenant, there could be no difficulty in justifying the applicant ’s conviction by one of the legitimate aims set out in the second paragraph of Article 10 such as “the prevention of disorder” – because it was an offence which discredited a State institution (“prevention of disorder” in the wider sense given to it by the Court in the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 41, § 98) – and “... the functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline, for example by writings” (ibid., pp. 41–42, § 100).

5. Over and above the fact that the applicant was a member of the armed forces, insulting or offending State institutions (the army, judiciary, Parliament or even emblems) constitutes a punishable offence u nder the ordinary law in most member States of the Council of Europe and the criminal-law provisions concerned are, in my opinion, compatible with the Convention and in particular freedom of expression.

6. The interference in this case was prescribed by d omestic law, pursued a legitimate aim and was necessary in a democratic society under paragraph 2 of Article 10.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 121/1996/740/939. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding origin ating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), bu t a copy of the Commission’s report is obtainable from the registry.

[5]

1. See the following judgments: Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996-II, p. 497, § 31; Tolstoy Miloslavsky v. the United Kingdom, 13 Jul y 1995, Series A no. 316-B, p. 71, § 37; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A, p. 25, § 75; Kruslin v. France, 24 April 1990, Series A no. 176-A, p. 23, § 30; Huvig v. France, 24 April 1990, Series A no. 176-B, p. 5 5, § 29; Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 33, § 88.