CEDH · CASELAW;REPORTS;ENG — 25 juin 1996

.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. 24348/94                          Panayiotis Grigoriades                                    against                                  Greece                         REPORT OF THE COMMISSION                         (adopted on 25 June 1996)                             TABLE OF CONTENTS                                                                    Page   I.    INTRODUCTION      (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . .1        A.     The application            (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . .1        B.     The proceedings            (paras. 5-10) . . . . . . . . . . . . . . . . . . . . . .1        C.     The present Report            (paras. 11-15). . . . . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 16-27). . . . . . . . . . . . . . . . . . . . . . . . .3        A.     The particular circumstances of the case            (paras. 16-26). . . . . . . . . . . . . . . . . . . . . .3        B.     Relevant domestic law            (para. 27). . . . . . . . . . . . . . . . . . . . . . . .8     III. OPINION OF THE COMMISSION      (paras. 28-54). . . . . . . . . . . . . . . . . . . . . . . . .9        A.     Complaints declared admissible            (para. 28). . . . . . . . . . . . . . . . . . . . . . . .9        B.     Points at issue            (para. 29). . . . . . . . . . . . . . . . . . . . . . . .9        C.     As regards Article 10 of the Convention            (paras. 30-47). . . . . . . . . . . . . . . . . . . . . .9        1.     Whether the interference was "prescribed by law"            (paras. 32-36). . . . . . . . . . . . . . . . . . . . . .9        2.     Whether the interference pursued a legitimate aim            (paras. 37-39). . . . . . . . . . . . . . . . . . . . . 10        3.     Whether the interference was "necessary            in a democratic society"            (paras. 40-46). . . . . . . . . . . . . . . . . . . . . 11              CONCLUSION            (para. 47). . . . . . . . . . . . . . . . . . . . . . . 12        D.     As regards Article 7 of the Convention            (paras. 48-51). . . . . . . . . . . . . . . . . . . . . 13              CONCLUSION            (para. 52). . . . . . . . . . . . . . . . . . . . . . . 13        E.     Recapitulation            (paras. 53-54). . . . . . . . . . . . . . . . . . . . . 13       DISSENTING OPINION OF Mr. F. MARTINEZ. . . . . . . . . . . . . . . 14     APPENDIX    :     DECISION OF THE COMMISSION AS TO THE                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . . 16   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 citizen, born in 1964 and resident in Pentaplatanos Yiannitson. He was represented before the Commission by Mr. I. Milonas, a lawyer practising in Athens.   3.    The application is directed against Greece. The respondent Government were represented by their Agent, Mr. L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr. F. Georgakopoulos, Senior Adviser (Paredros) of the Legal Advisory Council of the State, and Mrs. F. Dedoussi, Legal Assistant (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns the applicant's conviction for insulting the army. The applicant invokes Articles 7 and 10 of the Convention.   B.    The proceedings   5.    The application   was introduced on 17 March 1994 and registered on 7 June 1994.   6.    On 13 January 1995 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'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.   8.    On 4 September 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 14 September 1995. The Government was invited to produce a copy of the letter on the basis of which the applicant was convicted. Both parties were invited to submit such further information or observations on the merits as they wished. The Government submitted a copy of the letter on 12 October 1995. The parties did not submit any further observations.   10.   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   11.   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.   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                 M.P. PELLONPÄÄ                 B. MARXER                 G.B. REFFI                 M.A. NOWICKI                 I. CABRAL BARRETO                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 J. MUCHA                 D. SVÁBY                 G. RESS                 A. PERENIC                 C. BÎRSAN                 P. LORENZEN                 K. HERNDL                 E. BIELIUNAS   12.   The text of this Report was adopted on 25 June 1996 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.   13.   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.   14.    The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   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.   17.   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.   18.   The letter read as follows:              (Original)              "PROSOPIKI DILOSI              Meta apo 2 oloklira chronia stratiotikis thitias san Dokimos Efedros Axiomatikos,      eimai ipochreomenos na sas enimeroso, pos arnoumai tin paratasi tis thitias mou,      meta   apo epivoli poinis gia tin iperaspisi ton dikaiomaton ton stratevmenon.   Tin      theoro apo ti mehri simera ebiria mou, san ena meros tis sinolikoteris antilipsis gia ti      katastoli tis eleftheris prosopikotitas kai tis diekdikisis ton Sintagmatikon dikaiomaton      kai atomikon eleftherion. Pera apo to prosopiko kostos, genikotera, theoro aparadekti      kai Antisigmatiki tin epivoli poinis stous stratevmenous neous kai poli perissotero      malista otan prokeitai gia poini pou ehei shesi me tin pali ton neon anthropon gia to      sevasmo ton ideologikon-koinonikon dikaiomaton tou anthropou kai tin iperaspisi tis      prosopikotitas tous apo ton exeftelismo tis stratokratikis mihanis.   Meta apo 24 mines      agonistikis stasis kai sineiditis thesis, apenanti se afto to choro, diatiro to dikaioma, alla      kai to chreos sichronos, pros tin katefthinsi tis edraiosis   tis koinonikis dikaiosinis kai      tin ipothesi tis irinis, perissotero apo kathe alli fora kai ehontas pliri sinidisi tis praxis      mou, san ametaklita koinonika epivevlimenis, na KATAGGEILO me afto to tropo:              Pos o stratos, einai enas mihanismos, pou antikeitai ston   anthropo kai stin      koinonia kai antipragmatevetai apo ti fisi tou tin irini.              Tora pia, eimai apolita vevaios, pos i diadikasia tou stratou, efthinetai gia      eglimata kai epithetikes siberifores mesa sto koinoniko pedio, afou ehei diamorfosei      psihologia vias, xepernontas, etsi tis ithikes kai psihikes antistasis kata tis vias.   O      stratos exakolouthi na paramenei mia eglimatiki tropokratiki mihani, pou mesa apo to      klima fovias kai katarakosis tis psihikis igias tou rizospastikou neou, stohevei      xekathara, sti metatropi ton anthropon se exartimata mias exousiastikis mihanis, pou      ftheirei tin anthropini fisi, allionei tis anthropines sheseis, apo sheseis filias kai agapis,      se sheseis exartisis, mesa   apo mia ierarhia tropou, pou kathodigei enas aneleftheros      katapiestikos kanonismos 20-I, mitroa fronimaton, klp. I alithia einai pos oi sinthikes      diaviosis, pou epikratoun sto strato einai exontotika aparadektes kai kathe igiis morfi      antistasis kai prospatheia gia dialogo haraktirizetai, dioketai kai odigeitai aniperaspista      sti stratiotiki dikaiosini, ena epikindino thesmo, pou prepei na papsei na iparhei.   Kai      ola afta para tis   proeklogikes exaggelies tou Ipourgeiou Ethnikis Aminas gia sevasmo      stin prosopikotita tou stratevmenou, eno stin pragmatikotita simmetehei kai entharinei      tetoiou idous katastaltikes diadikasies.   Etsi me afto ton tropo diamartirias, ego      prosopika, alla kai oloi oi neoi pou niothoun to dikio na tous pnigei, gia tin katarrakosi      tis zois tous, PALEVOUME:              Na stamatisoun oi dioxeis gia ti simmetohi se diadikasies, pou proothoun tin      koinoniki dikaiosini, tin eirini kai to dikaioma na ehoume gnomi gia zitimata pou      aforoun ti zoi mas.   Na iparxei i politiki voulisi tou ipourgeiou, gia ousiastiko elencho      tis stratokratikis exousias kai na diokontai oi pragmatika ipefthinoi foreis, aftis tis      aftarhikis antilipsis kai ohi na kaliptontai sistimatika.   Na katohirothei apofasistika apo      tin politeia, o sevasmos tis protovoulias kai tis koinonikis epilogis ton neon, katargontas      kathe eidous poines gia aftes tis diekdikiseis.    Kai ohi na arkeitai sta "sosialistika      logia" kai sti sineheia, na akolouthei   tin praktiki tis exontosis. Na diakirixoume pos i      katargisi afton ton aftarhikon thesmon, einai ipotheisi mias poliplevris kai polihronis      palis, se prosopiko, politiko kai koinoniko epipedo.   Na stamatisoun oi diakriseis, oi      evnoies kai oi exartiseis, methodefseis pou hrisimopoioun dieftharmenoi mihanismoi.              Etsi meta apo tin ebeiiria mou afti, ehei anaptihthei mesa pou i eleftheri      sineidisi, pou mou apagorevei na simmeteho sinenohika se afti tin eglimatiki      diadikasia, opos pragmatonetai sti leitourgia kai sti domi, arnoumenos na foreso kato      apo aftes tis proïpotheseis, apo edo kai mera ti stoli.   Kati tetoio,   niotho pos tha      eferne ton eafto mou se sinithisiaki krisi, antipetopi me ti leitourgia kai tin psihosnthesi      mou, se prootheftika   galouhimenou anthropou.     I nea genia, tha antistathoume, na      fortothoume tis adinamies kai na ginoume foreis tou stratioutikou katestimenou.   Gi'      afto, i stasi mou afti, den einai nomimo na hreothei san lipotaxia i anipakoi, efoson      einai aporroia themeliodon anthropinon dikaiomaton kai vrisketai se simfonia me tis      diataxeis tou Ellinikou Sintagmatos.   Theoro ton eafto mou, oti parameno politis kai      eleftheros anthropos, pou epidioke na meinei sinepis me ti sinidisi tou kai tin eleftheri      voulisi pou pigazei apo afti. Theoro akoma, pos i   stasi mou kai i foni diamartirias,      apenanti se afti tin exathliosi, einai i pio gnisia ekfrasi allileggiis kai sybarastasis, pros      tous antirrisies sinidisis, giati pistevo akradanta, pos mono etsi pragmatonetai kai i pali      gia tin koinoniki apeleftherosi kai irini."              (Translation)              "PERSONAL STATEMENT              After two whole years of military service as cadet reserve      officer, I am obliged to inform you that I object to the      prolongation of my military service following a sentence imposed      on me for defending the rights of soldiers. Judging from my      experience to this day, I think that this forms part of a general      approach intended to suppress freedom of personality and the      vindication of constitutional rights and personal freedom. Apart      from the personal cost, I generally consider that imposing a      sentence on soldiers is inadmissible and unconstitutional, all      the more so when such a sentence is related to the struggle of      young people for respect for the ideological - social human      rights of people and (their struggle) for defending their      personality against the humiliations of the military mechanism.      Having maintained for 24 months a fighting stance and a conscious      position vis-à-vis this domain, I reserve a right, which is also      a duty towards establishing social justice and peace, now more      than ever and being fully aware of my actions which are      imperatively dictated to me in the interests of society, to      DENOUNCE by this means:              That the army is a mechanism against man and society and,      by its nature, contrary to peace.              I am now absolutely certain that the process of military      service is responsible for crimes and aggressiveness in society      since it has created a psychology of violence, overcoming in this      manner all moral and psychological resistance to violence. 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. The truth is that the living conditions in the army are      unaccaptable to a point of being destructive and any healthy form      of resistance and any effort towards dialogue are persecuted and      brought defenceless before the military justice, a dangerous      institution that should be abolished. All this happens despite      the electoral announcements of the Ministry of National Defence      concerning respect for the personality of the soldiers; in      reality, the Ministry participates in and encourages such      oppressive processes. Using this way of protesting, I myself and      all young people who feel a deep sense of injustice because their      life has been reduced to tatters, we FIGHT:              To stop all forms of persecution for having participated in      processes that promote social justice, peace and the right to      have an opinion on issues that concern our life; for the Ministry      to have the political will to control in a meaningful manner the      military power and to persecute those who are really responsible      for this authoritarianism, instead of systematically covering      them up; for the State to establish once and for all respect for      the initiatives and social choices of young people, by      eliminating all kinds of sentences for such vindications. It      should not content itself with "socialist vocabulary" and then      follow the practice of destruction; to declare that the      elimination of these authoritarian institutions is a matter of      a multi-faceted and long struggle at a personal, political and      social level; to put an end to discrimination, favouritism and      dependency, all of these being methods used by corrupt      mechanisms.              Thus, following this experience of mine, I have developed      a free conscience which prevents me from participating in and      being an accomplice to this criminal process, as it is realised      in its operation and structure, refusing from now on to wear      under these circumstances my uniform. If I did, I feel that I      would lead myself in a crisis of conscience, contrary to my way      of operating and frame of mind as a man brought up with liberal      ideas. We, the young generation, will resist any attempt to be      burdened with weaknesses and become vehicles of the military      establishment. This is why my stance cannot be lawfully      considered to be desertion or insubordination, since it stems      from fundamental human rights and is in conformity with the      provisions of the Greek Constitution. I consider that I remain      a citizen and a free man who sought to remain true to his      conscience and the free will flowing from it. I also consider      that my stance and the voicing of my protest against this      humiliation is the most genuine expression of solidarity with and      support for the conscientious objectors because I firmly believe      that this is how the struggle for social liberation and peace is      carried out."   19.   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.   20.   The applicant was tried on 27 June 1989 by the Permanent Army Court (Diarkes Stratodikio) 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 on 10 May 1989 the applicant had given him a copy of the letter he had sent to the commander of their unit.   21.   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?"   22.   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.   23.   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 on the ground that he was a first time offender. The applicant was immediately liberated, the time spent in detention on remand having counted against his sentence.   24.   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 the Constitution, because of its vagueness, and could not be considered lex certa and, furthermore, introduced an impermissible limitation of freedom of expression.   25.   His appeal was heard by the Sixth Chamber of the Court of Cassation (Arios 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.   26.   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.   B.    Relevant domestic law   27.   Article 74 of the Army Criminal Code provides the following:              (Original)              Prosbolitis sinaias i ton straton              "Stratistikos ostis prosvaliei tin sinaian ton straton i siakritikon      sima tis sioikiseos anton, timoreitai me philakisin tonlaxiston eis minon, ean seinai      aisiomatikos, kai me ekptosin."              (Translation)              Insulting the flag or the army              "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."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   28.   The Commission has declared admissible the applicant's complaints that his conviction constituted an unjustified interference with his right to freedom of expression and that Article 74 of the Army Criminal Code for a breach of which he was convicted was not lex certa.   B.    Points at issue   29.   The issues to be determined are        - whether there has been a violation of Article 10 (Art. 10) of the Convention and        - whether there has been a violation of Article 7 (Art. 7) of the Convention.     C.    As regards Article 10 (Art. 10) of the Convention   30.   Article 10 (Art. 10) of the Convention, insofar as relevant, 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 ofthe      judiciary."   31.   The Commission considers that the applicant's conviction to three months' imprisonment for having insulted the army constitutes an interference with his right to freedom of expression. This is not disputed by the parties. Such an interference would be a violation of Article 10 (Art. 10) of the Convention, if it was not "prescribed by law", if it did not pursue one of the legitimate aims enumerated in the second paragraph of that provision or if it was not "necessary in a democratic society" for one of these aims.   1.    Whether the interference was "prescribed by law"   32.   The applicant submits that the interference is not "prescribed by law" because Article 74 of the Army Criminal Code is not lex certa. Its overbroad wording and the absence of any relevant case-law result 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.   33.   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.   34.   The Commission recalls that, in accordance with the Court's case- law, a norm cannot be regarded as a "law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31, para. 49).   35.   The Commission notes that the aim of Article 74 of the Army Criminal Code is to protect a State institution, the army, as opposed to a person, from insults. However, it does not consider that this in itself renders the provision "imprecise" within the meaning of the Convention. As for the rest, Article 74 does not differ in any manner from other statutory provisions which render "insulting" a criminal offence. It follows that the applicant should have been able to regulate his conduct on the basis of the statutory provision itself and he cannot rely on the scarcity of published case-law to claim that he was unable to foresee the consequences which his sending of the letter might entail.   36.   The Commission therefore considers that the requirement laid down in Article 10 para. 2 (Art. 10-2) that any interference with the right to freedom of expression must be "prescribed by law" has been complied with in this case.   2.    Whether the interference pursued a legitimate aim   37.   The applicant has not made any submissions in this connection.   38.   The Government contend that the aim of Article 74 of the Army Criminal Code is to protect the authority of the army as an institution, so as to enable it to accomplish its mission, which is to protect society from external or internal threats. As a result, the interference was aimed at protecting national security, territorial integrity and public safety.   39.   The Commission considers that the applicant's conviction under Article 74 of the Army Criminal Code pursues a legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention to the extent that it was imposed to maintain discipline in the army. The Commission has examined the decisions of the army courts and of the Court of Cassation and considers that such an element was present in the applicant's conviction. It follows that the interference with the applicant's right to freedom of expression pursued a legitimate aim under the Convention, namely to maintain order in the armed forces (Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, p. 41; para. 98; Vereinigung Demokratischer Soldaten Österreichs and Gubi judgment of 19 December 1994, Series A no. 302, p. 16, para. 32 and p. 19, para. 47).   3.    Whether the interference was "necessary in a democratic society"   40.   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.   41.   The Government contend that the interference was necessary. They stress the need to protect the authority of the army, the abusive terms used in the letter and the possibility that the contents of the letter would become 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 this 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.   42.   The Commission recalls that the adjective "necessary" within the meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The interference complained of has to be looked at in the light of the case as a whole, and it has to be determined whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient", due regard being had to the importance of freedom of expression in a democratic society (see Eur. Court H.R., Observer and Guardian judgment of 26 November 1991, Series A no. 216, p. 30, para. 59).   43.   The Commission further recalls that freedom of expression is also applicable to "information" or "ideas" that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". The same is true when the persons concerned are servicemen, because Article 10 (Art. 10) applies to them just as it does to other persons within the jurisdiction of the Contracting Parties. However, the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline, for example by writings (Vereinigung Demokratischer Soldaten Österreichs and Gubi judgment, p. 17, para. 36).   44.   Finally, the Commission recalls that imposing a criminal penalty on a person for insulting a State institution, as opposed to a public official, is not in itself incompatible with the Convention, if this is done to protect public order (Eur. Court H.R., Castells judgment of 23 April 1992, Series A no. 236, p. 24, para. 46). However, the limits of permissible criticism are wider with regard to the various arms of the executive than in relation to a private citizen (see, mutatis mutandis, Eur. Court H.R., Castells judgment, p. 23, para. 46, in conjunction with the Thorgeir Thorgeirson judgment of 25 June 1992, Series A no. 239 p. 27, para. 64).   45.   Applying these general principles to the circumstances of the case, the Commission notes that the applicant was convicted for having addressed to one of his superior officers a letter in which he criticised the army and that he was given a non-suspended sentence of three months' imprisonment. The Commission does not disregard the fact that the letter contained particularly harsh terms. However, it did not contain any insults for individual members of the armed forces and its aim was to address a number of concrete problems facing army conscripts, i.e. to raise a matter of public concern. Moreover, the letter was addressed to a particular officer and not to the press or even to the applicant's fellow conscripts at large. As a result and although the letter was seen by at least one other conscript, its potential for undermining military discipline was insignificant.   46.   In the light of the above and taking into consideration the nature of the penalty imposed, the Commission finds that the interference with the applicant's right to freedom of expression was not "necessary in a democratic society" for the prevention of disorder in the army. It was disproportionate to the legitimate aim pursued and therefore not justified under paragraph 2 of Article 10 (Art. 10-2) of the Convention.          CONCLUSION   47.   The Commission concludes, by 28 votes to 1, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention.   D.    As regards Article 7 (Art. 7) of the Convention   48.   Article 7 para. 1 (Art. 7-1) of the Convention, insofar as relevant, 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. ..."   49.   The applicant argues that he could not have known that his sending of the letter in question would have rendered him liable to criminal prosecution because Article 74 of the Army Criminal Code is not lex certa. The Government disagree. Both parties refer to their submissions under Article 10 (Art. 10) of the Convention.   50.   The Commission recalls that Article 7 (Art. 7) requires that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable (Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A no. 260 A, p. 22, para. 52).   51.   The Commission has already considered that the wording of Article 74 of the Army Criminal Code is sufficiently precise to have enabled the applicant to predict that his sending of the letter might have rendered him liable to criminal prosecution. It follows that there was no breach of Article 7 (Art. 7) of the Convention.          CONCLUSION   52.   The Commission concludes, unanimously, that in the present c