CEDH · CASELAW;REPORTS;ENG — 4 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 18877/91                             Sadik AHMET                               against                               Greece                      REPORT OF THE COMMISSION                      (adopted on 4 April 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-31) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-31)   . . . . . . . . . . . . . . . . . .3        B.    The relevant domestic law           (para. 32). . . . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 33-55) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 34). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 10 of the Convention           (paras. 35-54). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 55). . . . . . . . . . . . . . . . . . . . .8   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . .9   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 10   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Greek national, born in 1947 and resident in Komotini (Western Thrace, Greece).   He was represented before the Commission by Prof. Tekin Akillioglu, a lawyer practising in Ankara.   3.    The application is directed against Greece.   The respondent Government were represented by their Agent, Mr. Vassilios Kontolaimos of the Legal Council of State.   4.    The case concerns the conviction and sentence of the applicant, one of the political leaders of the Moslem (Turkish) minority in Western Thrace. He was convicted of disrupting public peace by distributing, during his election campaign in October 1989, printed material referring to the Moslem population of Western Thrace as "Turks". He was sentenced to 15 months' imprisonment. The applicant invokes Article 10 of the Convention.   B.    The proceedings   5.    The application was introduced on 11 July 1991 and registered on 27 September 1991.   6.    On 3 May 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government submitted their observations on 8 October 1993, after one extension of the time-limit fixed for this purpose, and their supplementary observations on 29 October 1993.   The applicant replied on 18 November 1993.   8.    On 14 April 1994 the Commission decided to hold a hearing of the parties.   On 20 June 1994 the President of the Commission granted the applicant legal aid for the representation of his case. The hearing was held on 1 July 1994.   The Government were represented by their Agent, Mr. Vassilios Kontolaimos and by Ms. Vassilia Pelekou as adviser. The applicant was represented by Prof. Tekin Akillioglu.   9.    On 1 July 1994 the Commission declared admissible the applicant's complaint under Article 10 of the Convention. It declared inadmissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 13 July 1994.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report     12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.A. NØRGAARD, President                H. DANELIUS                C.L. ROZAKIS                A.S. GÖZÜBÜYÜK                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                B. CONFORTI                I. BÉKÉS                E. KONSTANTINOV                D. SVÁBY                G. RESS   13.   The text of this Report was adopted on 4 April 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   The applicant was elected Member of Parliament in June 1989 and was a potential candidate at the election on 5 November 1989. In October 1989, the applicant and B., another candidate, distributed leaflets which, inter alia, referred to the "Turkish minority" of Western Thrace.   18.   The applicant and B. were subsequently charged with deceiving the electoral body (exapatisi eklogeon), an offence under Article 162 of the Greek Penal Code, because in the leaflet they had stated that the candidates of the main political parties had created a climate of terror and anarchy among the Moslem population. They were further charged with "disrupting public peace" (diataraxi koinis eirinis), an offence under Article 192 of the Penal Code, by openly and indirectly inciting citizens to violence or by creating rifts among the population by the use of the words "Turk(s)" or "Turkish" to identify the Moslems of Western Thrace.   19.   On 25 January 1990 the applicant appeared before the First Instance Criminal Court (Trimeles Plimmeleiodikeio) of Rhodopi charged with the above offences. While the interrogation of witnesses was taking place the applicant requested that one of the judges be discharged because the way in which he put questions indicated that he was biased. This request was rejected.   20.   The applicant alleges that at one stage he requested the proceedings to be adjourned because of the absence of his lawyer, but that his request was also rejected. However this event does not appear in the records of the hearing.   21.   On 26 January 1990 the Court acquitted the applicant of deceit but found him guilty of disrupting public peace. It held that by the end of October 1989 the applicant had distributed to the population of Komotini and other places in the District of Rhodopi printed material which repeatedly contained the terms "Turk", "Turkish Moslem", and the "Turkish Moslem minority of Western Thrace", referring to the Greek Moslem citizens of Rhodopi; he had thereby aimed at creating feelings of hatred and enmity and at dividing the population; his purpose was to incite the population of each community to act violently against the other and to disrupt, as he actually did, the peaceful coexistence of the Greek Christian and the Greek Moslem communities.   22.   The Court sentenced the applicant to 18 months' imprisonment, not convertible into a fine. His request to suspend the sentence pending his eventual appeal was rejected by the Court, on the ground, inter alia, that the applicant was dangerous and that there was a risk that he would flee to Turkey.   23.   The applicant was detained from 26 January to 30 March 1990.   24.   On 27 January 1990 the applicant appealed against the above judgment.   25.   By the end of January 1990 violence erupted in Komotini which resulted in damage to numerous businesses and shops. A Christian was killed by a Moslem in a hospital.   26.   On 30 March 1990 the Court of Appeal (Trimeles Efeteio) of Patras confirmed the first instance judgment, finding the applicant guilty of disrupting public peace.   27.   The Court stated that the applicant had deliberately described the Greek Moslems of Western Thrace as "Turks", although he knew that the 1923 Treaty of Lausanne refers to and recognises only a religious (Moslem) minority and not a Turkish (ethnic) minority. It held that the applicant aimed at creating feelings of hatred and hostility within the Moslem community towards the Greek Christians, and that he had succeeded in disrupting public peace in Komotini, as well as provoking violent events in this town. However, the Court of Appeal reduced the sentence to 15 months' imprisonment, convertible to a fine.   28.   On 8 April 1990, after his release from prison, the applicant was re-elected to the Greek Parliament.   29.   On 24 October 1990 the applicant appealed to the Court of Cassation (Areios Pagos).     30.   In his appeal he complained that the charges against him were vague and that the courts should have declared the prosecution case inadmissible. He further complained that the judgment of the Court of Appeal was not sufficiently reasoned as required by the Constitution and the law. In this respect he complained that the Court did not indicate in what way the use of the word "Turk" or "Turkish" was capable per se of creating a climate of hatred or of disrupting public peace. He also complained that the judgment gave no concrete examples of any event having actually occurred by the end of October 1989 which could have been regarded as a genuine disruption of public peace or a disturbance of public order.   31.   On 15 February 1991 the Court of Cassation rejected the appeal. The Court found that the judgment of the Court of Appeal had been sufficiently reasoned.   B.    The relevant domestic law   32.   Article 192 of the Greek Penal Code provides:        "Any person who publicly and in any manner whatsoever provokes      or incites the citizens to mutual assault or discord and thus      disrupts public peace, shall be liable to imprisonment for a term      not exceeding two years, unless another provision imposes a more      severe sentence."   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The Commission has declared admissible the applicant's complaint that his conviction of having disrupted public peace, by distributing printed material referring to the Moslem population of Western Thrace as "Turks", violated his rights under Articles 9, 10, 11 and 14 (Art. 9, 10, 11, 14) of the Convention. As his conviction involved his writings, the Commission considered that the main issue arose under Article 10 (Art. 10) of the Convention.   B.    Point at issue   34.   The Commission is called upon to consider whether or not there has been a violation of Article 10 (Art. 10) of the Convention.   C.    As regards Article 10 (Art. 10) of the Convention   35.   The relevant parts of Article 10 (Art. 10) of the Convention provide as follows:        "1.   Everyone has the right to freedom of expression. This      right shall include freedom to hold opinions and to receive      and impart information and ideas without interference by      public authorities and regardless of frontiers ...        2.    The exercise of these freedoms, since it carries with      it duties and responsibilities, may be subject to such      formalities, conditions, restrictions or penalties as are      prescribed by law and are necessary in a democratic      society, in the interests of national security, territorial      integrity or public safety, for the prevention of disorder      or crime ...".     36.   In the present case the Commission finds that there has been an interference by a public authority with the exercise of the applicant's freedom of expression within the meaning of Article 10 (Art. 10). This interference resulted from his conviction and sentence to 18 months' imprisonment by the Criminal Court of Rhodopi.   37.   The Commission also finds that the interference was in accordance with law as it was based on Article 192 of the Greek Penal Code. The restriction furthermore pursued a legitimate aim covered by Article 10 para. 2 (Art. 10-2) of the Convention, namely the prevention of disorder.   38.   Accordingly, the key issue in the present case which remains to be examined is whether the restriction complained of could reasonably be considered to be "necessary in a democratic society" as required by Article 10 para. 2 (Art. 10-2) of the Convention.   39.   The applicant stresses the key role played by freedom of expression in a democratic society and considers that the importance of this freedom is even greater for an elected representative whose mandate is to act as a spokesman for the opinions and concerns of his constituents.   40.   The applicant considers that his conviction and sentence constituted a reprisal for his assertion of his Turkish ethnic origin. He submits that the use of the word "Turks" to identify the Moslems of Western Thrace is frequent even in schoolbooks, in administrative documents and in judgments. He further submits that there was no evidence of disruption of public order. There was thus no pressing social need for his conviction and sentence.   41.   The applicant concludes that his conviction and sentence were a disproportionate interference with his freedom of expression.   42.   The Government stress that freedom of expression has limits which the applicant overstepped. The Treaty of Lausanne refers to "Moslems" and not to "Turks". The applicant deliberately chose to use expressions which aimed at creating feelings of hatred and hostility within the Moslem community towards the Greek Christians and, therefore, abused his right to freedom of expression.   43.   The Government further submit that the applicant's conviction and sentence were decided by the competent domestic courts, which found him guilty of the offence provided for in Article 192 of the Greek Penal Code, and argue that every conviction which is decided in accordance with law is compatible with Article 10 para. 2 (Art. 10-2) of the Convention.   44.   The Government thus find, having regard to the State's margin of appreciation, that the interference with the applicant's right to freedom of expression was necessary in a democratic society within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.   45.   The Commission recalls that the adjective "necessary", within the meaning of Article 10 para. 2 (Art. 10-2), is not synonymous with "indispensable" or as flexible as "reasonable" or "desirable", but implies the existence of a pressing social need (see, inter alia, Eur. Court H.R., Barthold judgment of 25 March 1985, Series A no. 90, pp. 24-25, para. 55).   46.   It is true that the initial responsibility for securing Convention rights and freedoms lies with each Contracting State. Accordingly, Article 10 para. 2 (Art. 10-2) of the Convention leaves the Contracting State a certain margin of appreciation in assessing whether such a need exists, but this margin goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts (see, inter alia, Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A no. 216, p. 30, para. 59).   47.   The Convention organs' task, in exercising their supervisory function, is not to take the place of the competent national authorities but rather to review under Article 10 (Art. 10) the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Convention organs have to do is to look at the interference complained of in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient (Eur. Court H.R., Barthold judgment, op. cit.).   48.    In doing so, the Convention organs have to satisfy themselves that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (Art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (Eur. Court H.R., Jersild judgment of 23 September 1994, Series A no. 298, para. 31).   49.   In the present case, the Commission has therefore examined whether there was a pressing social need to convict and sentence the applicant for having distributed printed material referring to the Moslem population of Western Thrace as "Turks" and whether the conviction and sentence were proportionate to the aim pursued.   50.   The Commission recalls that freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of everyone. Subject to paragraph 2 of Article 10 (Art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (see, inter alia, Eur. Court H.R., Vereinigung Demokratischer Soldaten Österreichs and Gubi judgment of 19 December 1994, to be published in Series A no. 302, para. 36).   51.   This being so, the Commission emphasises the crucial importance of freedom of expression for an elected representative of the people who represents his electorate, draws attention to their preoccupations and defends their interests (Eur. Court H.R., Castells judgment of 23 April 1992, Series A no. 236, p. 22, para. 42). Accordingly, the institution of criminal proceedings for statements made in the context of an electoral campaign is justified only insofar as it is not possible for the State to react in a suitable and adequate manner by way of the means usually available to democratic States (see Castells v. Spain, Comm. Report 8.1.91, para. 69, Eur. Court H.R., op. cit.).   52.   In the present case, the Commission notes that the applicant has been convicted and sentenced for calling "Turks" the people belonging to the Moslem minority of Western Thrace.   53.   The Commission assumes that, in order to avoid rifts between the Christian and Moslem population of Western Thrace and to maintain their peaceful coexistence, moderation in political discussions may be desirable. However, it cannot find that, in the circumstances of this case, and in the absence of clear elements of incitement to violence, the imposition of a prison sentence for the use in public, namely in an election campaign, of the term "Turk" in respect of the Moslem minority in that area can reasonably be regarded as a "necessary" measure in a democratic society.   54.   Accordingly, the Commission concludes that the reasons advanced by the Government do not suffice to show that the interference with the applicant's freedom of expression was proportionate to the legitimate aim pursued. Thus it was not justified under Article 10 para. 2 (Art. 10-2) of the Convention.        CONCLUSION   55.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention.   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   11 July 1991              Introduction of application   27 September 1991         Registration of application   Examination of admissibility   3 May 1993                Commission's decision to communicate the                          case to the respondent Government and to                          invite the parties to submit observations                          on admissibility and merits   8 and 29 October 1993     Government's observations   18 November 1993          Applicant's observations in reply   14 April 1994             Commission's decision to hold a hearing   20 June 1994              President's grant of legal aid   1 July 1994               Hearing on admissibility and merits   1 July 1994               Commission's decision to declare                          application in part admissible and in part                          inadmissible   8 July 1994               Commission's adoption of text of decision                          on admissibility   Examination of the merits   13 July 1994              Decision on admissibility transmitted to                          parties.   3 December 1994           Examination of state of proceedings   4 April 1995              Adoption of Report