CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 24348/94                       by Panayiotis GRIGORIADES                       against Greece         The European Commission of Human Rights sitting in private on 4 September 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  P. LORENZEN              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 17 March 1994 by Panayiotis GRIGORIADES against Greece and registered on 7 June 1994 under file No. 24348/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to:   -      the Commission's decision of 13 January 1995 to communicate the       application;   -      the observations submitted by the respondent Government on       19 April 1995 and the observations in reply submitted by the       applicant on 15 June 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Greek citizen, born in 1964 and a journalist by profession. In the proceedings before the Commission he is represented by Mr. I. Milonas, a lawyer practising in Athens.         The facts of the case, as they have been submitted by the parties, may be summarised as follows:   1.     Particular circumstances of the case         In the course of his military service, as a reserve officer on probation, the applicant claims to have discovered a series of abuses committed against the conscripts and to have come, as a result, in collision with his superiors. Criminal and disciplinary proceedings were instituted against him. The former ended with his acquittal. A disciplinary penalty was, however, imposed on him and, as a result, he had to serve additional time in the army.         Considering that the extension of his military service was illegal, the applicant refused to serve the additional days. He was declared a deserter on 6 May 1989 and criminal charges were brought against him. On 8 May 1989 the commander of the applicant's unit received a letter in which the applicant explained his stance. Considering that the content of the letter insulted the army, the commander instituted new criminal proceedings against the applicant under Article 74 of the Army Criminal Code.         On 12 May 1989 the applicant presented himself before the investigating officer, a member of the army judicial corps, who remanded him in custody for desertion.         The applicant was tried on 27 June 1989 by the Permanent Army Court (Diarkes Stratodikeio) of Ioannina for the offences of desertion and insulting the army. At the outset of the trial, the defence questioned the constitutionality of the second charge, on the ground that the relevant criminal provision was not lex certa and the expression of criticism could not be considered to constitute an insult. The defence's preliminary exception was rejected by the court which proceeded to hear witnesses. One of the witnesses, a fellow reserve officer on probation, testified that the applicant on 10 May 1989 had given him a copy of the letter he had sent to the commander of their unit.         At the end of the hearing the president of the court formulated a series of questions which the members of the court had to address before deciding on the applicant's guilt. The questions relating to the insult charge read as follows:   a)     "Did the accused commit the offence of insulting the Greek       army when he addressed on 10 May 1989, while he was a       reserve officer on probation, a two-page typed personal       declaration to the commander of the X unit, which came to       the knowledge of the latter on the same day and which       contained, inter alia, the following phrases contemptuous       and disparaging for the authority of the army: '... The       army is a mechanism against man and society .... the army       remains a criminal and terrorist mechanism 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 a mechanism 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 (No.       20-1), records of political beliefs, etc ...... '. Did he       willingly insult in this manner the Greek Army as a       constitutionally entrenched institution of the Nation?"   b)     "..... (did the applicant act) in the mistaken but good       faith belief that he was engaging in permissible criticism,       in accordance with Article 14 of the Constitution currently       in force?"         The court, by unanimous vote, answered the first question affirmatively and the second negatively. The applicant was found guilty of desertion and insulting the army. Taking into account the fact that the applicant was a first offender, the court imposed on him a sentence of one year and eight months imprisonment for the first offence and a sentence of three months imprisonment for the second offence. The applicant was ordered to serve a global sentence of one year and ten months.         The applicant's appeal was heard by the Courts-Martial Appeal Court (Anatheoritiko Dikastirio) on 5 September 1989. The court quashed the applicant's conviction for desertion. However, it confirmed, by three votes to two, his conviction for insulting the army, having previously rejected the defence's objection as to the unconstitutionality of the relevant provision. A sentence of three months imprisonment was imposed on the applicant. He was immediately liberated, the time spent in detention on remand having counted against his sentence.         On 20 September 1989 the applicant appealed in cassation on the ground that Article 74 of the Army Criminal Code had not been correctly interpreted and applied in his case. He argued, inter alia, that general criticism of the army cannot be considered to constitute an insult. He also claimed that the provision violated, because of its vagueness, the Constitution, not being lex certa and introducing an impermissible limitation of freedom of expression.         His appeal was heard by the Sixth Chamber of the Court of Cassation (Areios Pagos) on 12 March 1991. On 26 June 1991 the Chamber decided to submit the case to the Plenary, having considered, by three votes to two, that Article 74 of the Army Criminal Code did not violate the Constitution and that it had been correctly applied in the applicant's case.         In a decision issued on 22 September 1993 the Plenary considered that Article 74 of the Code described in a sufficiently circumscribed manner the elements of the offence which were the insult and the intention of the culprit. Elaborating thereon, the Court found that         "(t)he concept of 'insult' includes every show of contempt       by which injury is brought to bear on the esteem and       respect for and the repute of the protected value. To       qualify as insult, a manifestation must bear contempt,       taunting and denigration; simply calling into question the       protected value is not sufficient. This value is the army       and, more in particular, not the land or air forces and the       navy, but the army in its entirety as an idea and an       institution entrusted with the defence of the freedom and       independence of the country and the necessary training of       the Greeks who can bear arms. Article 74 of the Army       Criminal Code does not specify the nature of the insult nor       the manner in and means by which the insult is brought       about, as it was not the intention of the legislator to       criminalise insults of a certain nature or committed in a       certain manner or by certain means. Every insult of the       army by a member of the armed forces is criminalised. This       does not create any uncertainty as to the elements of the       offence. Any further specification would have limited the       scope of the criminal prohibition, which the legislator did       not intend. Article 14 of the Constitution, which protects       the freedom of opinion, does not prevent in any way the       legislator from criminalising every instance of insulting       the army by a member of the armed forces. The protection of       Article 14 is subject to limitations provided by the law       ....."         In light of all the above, the Court upheld the applicant's conviction.   2.     Relevant domestic law         Article 74 of the Army Criminal Code provides the following:         "A member of the armed forces who insults the flag, the       army or an emblem of its command is punished with       imprisonment of at least six months. If he is an officer,       he is also deprived of his rank."   COMPLAINTS   1.     The applicant complains under Article 7 of the Convention that Article 74 of the Army Criminal Code is not lex certa.   2.     The applicant also complains of a violation of Article 10 of the Convention in that his conviction was not provided by a lex certa and was not necessary in a democratic society.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 17 March 1994 and registered on 7 June 1994.         On 13 January 1995 the Commission decided to communicate the application to the respondent Government and to request them to submit their written observations on admissibility and merits.         The Government's observations were submitted on 19 April 1995, after an extension of the time-limit fixed for this purpose. On 15 June 1995 the applicant submitted his observations in reply.   THE LAW         The applicant complains that he was convicted of insulting the army under Article 74 of the Army Criminal Code in violation of Articles 7 and 10 (Art. 7, 10) of the Convention.         Article 7 para. 1 (Art. 7-1) of the Convention provides as follows:         "No one shall be held guilty of any criminal offence on account       of any act or omission which did not constitute a criminal       offence under national or international law at the time when it       was committed. .......   "         Article 10 (Art. 10) of the Convention provides 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       authority 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, for the protection of health       or morals, for the protection of the reputation or rights of       others, for preventing the disclosure of information received in       confidence, or for maintaining the authority and impartiality of       the judiciary."         The Government submit that the applicant has not exhausted domestic remedies in connection with his complaint under Article 10 (Art. 10) of the Convention. Although the Convention is part of domestic law and the right to freedom of expression is guaranteed by the Greek Constitution, the applicant did not raise his complaint expressly or in substance before the domestic courts. In any event, the applicant's complaints under Articles 7 and 10 (Art. 7, 10) of the Convention are manifestly ill-founded.         As regards the lawfulness of the interference with the applicant's freedom of expression and the complaint under Article 7 (Art. 7) of the Convention, the Government submit that Article 74 of the Army Criminal Code is lex certa. The wording of the provision is sufficiently clear to enable all persons affected to regulate their conduct. Its meaning becomes even clearer when read in conjunction with the case-law of the army courts and the extensive case-law of the Court of Cassation interpreting Article 181 of the Criminal Code which provides for the related offence of insulting a public authority or a national emblem.         As regards the necessity of the interference, the Government stress the need to protect the authority of the army, the abusive contents of the letter and the possibility that the contents of the letter would be widely known, since the applicant had given a copy to one of his colleagues. They also argue that the penalty was rather lenient and stress in this connection that the applicant himself did not request a suspended sentence, having obviously preferred the solution adopted by the court of appeal, according to which the applicant's provisional detention was counted against his sentence. Given the wide margin of appreciation enjoyed by the national authorities in the field, the Government argue that the applicant's conviction was necessary in a democratic society in the interests of national security, territorial integrity and public safety.         The applicant submits that both his complaints have been raised before the national courts. He also argues that Article 74 of the Army Criminal Code is not lex certa. Its overbroad wording and the absence of any relevant case-law results in legal uncertainty. The case-law of the army courts referred to by the Government consists of three decisions which have not contributed in any manner to the clarification of the meaning of the provision, while the case-law of the Court of Cassation under Article 181 of the Criminal Code is irrelevant.         The applicant further argues that his conviction was not necessary in a democratic society, as the contents of the letter at issue did not go beyond the limits of permissible criticism which are particularly wide in the army context where human rights risk being subjected to various limitations. Finally, the letter was not addressed to the press and was written when the applicant was informed that he had been charged with desertion, a crime of which he was finally acquitted.         The Commission recalls that, in accordance with its case-law, domestic remedies have been exhausted if the applicant has submitted in substance his complaint before the highest domestic court, even without particular reference to the Convention (No. 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5). It considers that in the present case the applicant has in substance raised his complaints before the Court of Cassation. More in particular, the applicant submitted that the vagueness of Article 74 of the Army Criminal Code introduced an impermissible limitation of freedom of expression. He also argued that the provision should be applied in his case in a manner which would permit general criticism of the army. In these circumstances, the Commission considers that the applicant has exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention.         In the light of the parties' observations, the Commission further considers that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Commission                  President of the Commission          (H.C. KRÜGER)                                (S. TRECHSEL)