"Larissis": Another European Religious Liberty Case Decided Against Greece
Torino (Italy) February 24, 1998. On February 24, 1998 in the Larissis case the European Court of Human Rights found again against Greece in a religious liberty case, this time involving the proselytising of both Greek Air Force military personnel and civilians by members of a Pentecostal group simply called "Pentecostal Church" currently serving in the same Greek Air Force. The Court decided that, while it may be reasonable to prevent Air Force and other military officers from proselytising their subordinates, proselytising of civilians should not be prevented or limited. "The message is clear -- commented Dr. Massimo Introvigne, managing director of CESNUR -- it is now the fourth time Greece has lost a major religious liberty case before the European Court of Human Rights, after the Kokkinakis (1993) and Manoussakis (1996) cases involving the Jehovah's Witnesses and the Canea (1997) case involving the Roman Catholic Church. We still think it is great time Greece recognizes that it is now part of the European Union and surrenders its old laws and discriminations against minority religions". The full text of the decision follows.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF LARISSIS AND OTHERS v. GREECE
(140/1996/759/958-960)
JUDGMENT
STRASBOURG
24 February 1998
[Notes -- indicated with fn -- are at the end of the text]
The present judgment is subject to editorial revision before its
reproduction in final form in Reports of Judgments and Decisions 1998. These
reports are obtainable from the publisher Carl Heymanns Verlag KG
(Luxemburger Straße 449, D-50939 Köln), who will also arrange for their
distribution in association with the agents for certain countries as listed
overleaf.
List of Agents
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Bruxelles)
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Zoon (Noordeinde 39, NL-2514 GC 's-Gravenhage)
SUMMARY (fn 1)
Judgment delivered by a Chamber
Greece - conviction of air-force officers for proselytism (section 4 of Law
no. 1363/1938)
I. ARTICLE 7 OF THE CONVENTION
Position in Greek law had not become any less clear since Court's decision
in Kokkinakis v. Greece judgment that requirements of certainty and
foreseeability under Article 7 were satisfied by definition of offence of
proselytism.
Conclusion: no violation (eight votes to one).
II. ARTICLE 9 OF THE CONVENTION
A. Interference
Not disputed that prosecution, conviction and punishment of applicants
interfered with exercise of Article 9 rights.
B. "Prescribed by law"
Measures were "prescribed by law", for same reason Article 7 not violated.
C. Legitimate aim
Protecting rights and freedoms of others.
D. "Necessary in a democratic society"
1. General principles
Principles set out in Kokkinakis v. Greece judgment restated.
2. Proselytising of airmen
Convention applies in principle to armed forces - military hierarchical
structures may make it difficult for subordinate to withdraw from
conversation initiated by superior, causing risk of harassment - States may
therefore be justified in taking special measures to protect rights of
subordinate members.
Evidence that three subordinate airmen felt under pressure to take part in
religious conversations with applicants, who were superior in rank -
measures taken not particularly severe - not disproportionate.
Conclusion: no violation re: measures taken following proselytising of
airmen Antoniadis and Kokkalis (eight votes to one); no violation re:
measures taken following proselytising of airman Kafkas (seven votes to
two).
3. Proselytising of civilians
No evidence civilians subjected to improper pressure. Measures therefore
unjustified.
Conclusion: violation (seven votes to two).
III. ARTICLE 10 OF THE CONVENTION
Conclusion: no separate issue (unanimously).
IV. ARTICLES 14 AND 9 OF THE CONVENTION
No evidence law applied in discriminatory manner.
Conclusion: no violation re: proselytising of airmen (unanimously); no
separate issue re: proselytising of civilians (unanimously).
V. ARTICLE 50 OF THE CONVENTION
Non-pecuniary damage: compensation awarded.
Costs and expenses: sums claimed awarded in part.
Conclusion: respondent State to pay specified sums to applicants (seven
votes to two).
COURT'S CASE-LAW REFERRED TO
8.6.1976, Engel and Others v. the Netherlands; 26.4.1979, Sunday Times v.
the United Kingdom (no. 1); 25.5.1993, Kokkinakis v. Greece; 25.11.1997,
Grigoriades v. Greece
In the case of Larissis and Others v. Greece[fn2] ,
The European Court of Human Rights, sitting, in accordance with Article 43
of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") and the relevant provisions of Rules of Court
A[fn3] , as a Chamber composed of the following judges:
Mr F. GÖLCÜKLÜ, President,
Mr R. MACDONALD,
Mr J. DE MEYER,
Mr N. VALTICOS,
Mr R. PEKKANEN,
Mr J.M. MORENILLA,
Mr B. REPIK,
Mr P. KURIS,
Mr P. VAN DIJK,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 24 September 1997 and 30 January 1998,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human
Rights ("the Commission") on 28 October 1996, within the three-month period
laid down by Articles 32 § 1 and 47 of the Convention. It originated in
three applications (nos. 23372/94, 26377/95 and 26378/94) against the
Hellenic Republic lodged with the Commission respectively by three Greek
citizens, Mr Dimitrios Larissis, Mr Savvas Mandalarides and Mr Ioannis
Sarandis, under Article 25 of the Convention, on 28 January 1994.
The Commission's request referred to Articles 44 and 48 and to the
declaration whereby Greece recognised the compulsory jurisdiction of the
Court (Article 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent State of
its obligations under Articles 7, 9, 10 and 14 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3(d) of
Rules of Court A, the applicants stated that they wished to take part in the
proceedings and designated the lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio Mr N. Valticos, the
elected judge of Greek nationality (Article 43 of the Convention), and
Mr R. Ryssdal, the President of the Court (Rule 21 § 4(b)). On 29 October
1996, in the presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr J.
De Meyer, Mr R. Pekkanen, Mr D. Gotchev, Mr P. Kuris and Mr P. van Dijk
(Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr B.
Repik, substitute judge, replaced Mr Gotchev, who was unable to take part in
the further consideration of the case (Rules 22 § 1 and 24 § 1).
4. Through the Registrar, the President consulted the Agent of the Greek
Government ("the Government"), the applicants' lawyer and the Delegate of
the Commission on the organisation of the proceedings (Rules 37 § 1 and 38).
Pursuant to the order made in consequence, the Registrar received the
Government's memorial on 27 May 1997 and that of the applicants on 28 May
1997.
5. In accordance with the President's decision, the hearing took place in
public in the Human Rights Building, Strasbourg, on 22 September 1997. The
Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. GEORGAKOPOULOS, Adviser, Legal Council of State, Agent,
Mrs K. GRIGORIOU, Representative, Legal Council of State, Counsel,
(b) for the Commission
Mr D. SVÁBY, Delegate,
(c) for the applicants
Dr J.W. MONTGOMERY, Barrister-at-Law, Counsel,
Mr A. DOS SANTOS, Adviser.
The Court heard addresses by Mr Sváby, Dr Montgomery and Mrs Grigoriou.
6. Subsequently, Mr Gölcüklü replaced Mr Ryssdal, who was unable to take
part in the further consideration of the case, as President of the Chamber,
and Mr J.M. Morenilla, substitute judge, became a full member of the
Chamber.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The first applicant, Mr Dimitrios Larissis, was born in 1949 and lives
in Tanagra Viotias. The second applicant, Mr Savvas Mandalarides, was born
in 1948 and lives at Agria Volou. The third applicant, Mr Ioannis Sarandis,
was born in 1951 and lives in Kamatero Attikis.
At the time of the events in question, the three applicants were officers in
the same unit of the Greek air-force. They were all followers of the
Pentecostal Church, a Protestant Christian denomination which adheres to the
principle that it is the duty of all believers to engage in evangelism.
A. The alleged acts of proselytism
1. The alleged proselytising of airman Georgios Antoniadis by the first and
second applicants
8. In the evidence he gave for the purposes of the prosecution against the
applicants (see paragraph 13 below), airman Antoniadis said that he was
transferred to the applicants' unit in 1986, two months after joining the
Air Force, and was placed under the command of the second applicant in the
teletyping service. On approximately seven occasions the first and second
applicants engaged him in religious discussions, reading aloud extracts from
the Bible and encouraging him to accept the beliefs of the Pentecostal
Church. The second applicant told him that some members of the sect were
able to speak in foreign languages with the assistance of divine power.
Whenever airman Antoniadis returned from leave, the second applicant asked
him if he had visited the Pentecostal Church. The former testified that he
felt obliged to take part in these discussions because the applicants were
his superior officers.
2. The alleged proselytising of airman Athanassios Kokkalis by the first and
third applicants
9. In his statement before the Athens Permanent Air-Force Court (see
paragraph 13 below), airman Kokkalis testified that he served in the
applicants' unit between spring 1987 and October 1988, although he was not
under the direct command of any of them. During that time the first
applicant engaged him in theological discussions on approximately
30 occasions, and the third applicant on approximately 50 occasions,
initially concealing the fact that they were not Orthodox Christians but
subsequently criticising some of the tenets of that faith and urging airman
Kokkalis to accept their beliefs. The third applicant repeatedly asked him
to visit the Pentecostal Church in Larissa while he was on leave, telling
him that miracles took place there including the acquisition by believers of
the ability to speak in foreign languages, and gave him the Pentecostal
newspaper Christianismos to read. The applicants were very good officers and
were always polite to him, but their approaches bothered him nonetheless.
3. The alleged proselytising of airman Nikolaos Kafkas by the first and
third applicants
10. Airman Nikolaos Kafkas was unable to give evidence at the first
instance hearing because his wife was ill, but he told the Appeal Court (see
paragraph 21 below) that he had served in the same unit as the applicants,
under the command of the third applicant, between winter 1988 and August
1989. The applicants did not put any pressure on him to become a member of
the Pentecostal Church. He himself approached the third applicant and asked
why he was so peaceful, to which the latter replied that this was the result
of reading the Gospel. When, at the suggestion of the first and third
applicants, he started to read the Bible, he noticed a number of points of
divergence between it and the teachings of the Orthodox Church. He did not
have any discussions with the applicants concerning the Orthodox and
Pentecostal Churches, although he did seek their advice whenever he had any
questions concerning the Bible and always found their replies convincing.
They never gave him any Pentecostal literature or told him to go to the
Pentecostal Church. The third applicant never authorised his absence for
purposes related to the Pentecostal Church, which he had visited for the
first time in September 1989, after he had been discharged from the armed
forces.
Airman Kafkas's father, Mr Alexandros Kafkas, told the first instance court
that his son had been converted from the Orthodox to the Pentecostal Church
while serving in the air-force under the orders of the third applicant.
According to his father, shortly after he joined the unit his behaviour
changed. He stopped seeing his friends, spent long periods of time in his
room studying the Bible and listening to taped sermons and brought back from
the barracks his television and radio sets and the books from which he used
to study for university entrance examinations. He told his father that he
had met two officers who were real Christians, unlike his father. When his
parents followed him on one of his visits to the Pentecostal Church, he left
home and went to live in Athens. He returned after 20 days, when he
reconverted to the Orthodox Church, explaining to his father that the first
and third applicants had converted him to the Pentecostal Church, taking
advantage of their rank to exert pressure on him and using special skills of
persuasion. They had told him that he would be given leave of absence if he
promised to visit their church. When Alexandros Kafkas left to go on a trip,
Nikolaos reconverted to the Pentecostal Church. His father concluded that
his son had no will of his own and always did as he was told by other
members of the Pentecostal Church.
4. The alleged proselytising of the Baïramis family and their neighbours by
the second applicant
11. According to the statement of Captain Ilias Baïramis, his
brother-in-law, Mr Charalampos Apostolidis, a member of the Pentecostal
Church, began one day to rage at his wife, telling her that he saw Satan in
her. The second applicant was summoned, and as soon as he arrived
Mr Apostolidis became calmer. The second applicant then preached a sermon to
the members of the Baïramis family and some neighbours who had come to see
what was going on, in the course of which he urged them all to convert to
the Pentecostal religion.
5. The alleged proselytising of Mrs Anastassia Zounara by the second and
third applicants
12. In a statement prepared for the purposes of an administrative inquiry
against the applicants, Mrs Anastassia Zounara explained that her husband
had joined the Pentecostal Church, which led to the breakdown of her family
life with him. In an attempt to understand her husband's behaviour,
Mrs Zounara visited the Pentecostal Church and the applicants' homes on
several occasions over a period of about five months. During this time the
applicants, particularly the second and third applicants, used to visit her
and urge her to join their Church. They told her that they had received
signs from God and could predict the future, and that Mrs Zounara and her
children were possessed by the devil. Eventually she developed psychological
problems and severed all links with the applicants and the Pentecostal
Church.
B. The trial at first instance
13. On 18 May 1992, the applicants appeared before the Permanent Air-Force
Court (Diarkes Stratodikio Aeroporias) in Athens, composed of one officer
with legal training and four other officers. They were tried for various
offences of proselytism, under section 4 of Law No. 1363/38 as amended
(henceforth, "section 4": see paragraph 27 below).
14. In a decision delivered on the day of the hearing (no. 209/92), the
court rejected the defence's argument that the law against proselytism was
unconstitutional, finding that no issue could arise under the principle
nullum crimen sine lege certa because of the non-exhaustive enumeration in
the statute of the means by which an intrusion on another person's religious
beliefs could be brought about. It found all three applicants guilty of
proselytism, holding in particular as follows.
1. The first applicant
15. In respect of the first applicant, the court observed:
"The accused, while he was a military officer ... serving in
Unit X, committed the offence of proselytism in the military camp
of this unit between November 1986 and December 1987 by engaging
in several acts which ?gave rise to a single, albeit continuing,
breach of the relevant criminal provision. He acted with the aim
of intruding on and changing the religious beliefs of airman
Georgios Antoniadis, an Orthodox Christian who served in the same
unit. Abusing the trust placed in him by airman Antoniadis, who
was his hierarchical subordinate, the accused tried on
approximately 20 occasions to persuade airman Antoniadis to become
a member of the sect of the Pentecostal Church by engaging in
discussions on theology with him in the course of which the
accused contested the correctness of the teachings of the
University department of theology concerning God and the Orthodox
dogma. He also encouraged airman Antoniadis to read the Bible in
the light of the accused's own beliefs as a member of the
Pentecostal Church, questioned the holy traditions and recommended
that he visit the church of the Pentecostal sect in Athens.
Acting in the same capacity, the accused committed the offence of
proselytism between May 1987 and February 1988 by engaging in
several acts which ?gave rise to a single, albeit continuing,
breach of the relevant criminal provision. He acted with the aim
of intruding on and changing the religious beliefs of airman
Athanassios Kokkalis, an Orthodox Christian who served in the same
unit. On approximately 30 occasions the accused tried to persuade
airman Kokkalis to become a member of the sect of the Church of
Pentecost by engaging, persistently and importunately, in
discussions with him about the correctness of his beliefs as a
member of the sect of the Pentecostal Church, questioning the
holiness of the Christian Orthodox Church and inviting airman
Kokkalis to listen to taped recordings on the beliefs of the
Pentecostal sect. The accused took advantage of the trust inherent
in the relationship between a subordinate and a superior and of
airman Kokkalis's naivety, inexperience and youth, telling him
that in his church some people started speaking foreign languages
under the effect of the Holy Power.
Acting in the same capacity, the accused committed the offence of
proselytism between spring 1989 and 18 August 1989, in the place
mentioned above, by ?acting with the aim of intruding on and
changing the religious beliefs of airman Nikolaos Kafkas, who
served under his orders in the same unit. Taking advantage of the
trust inherent in the relationship between a subordinate and a
superior, and of the young man's naivety and inexperience, the
accused tried to persuade airman Kafkas to become a member of the
sect of the Church of Pentecost by continually, persistently and
importunately expounding on his beliefs concerning the sect of the
Pentecostal Church, reading and explaining the Bible in the light
of his beliefs and providing him with copies of a tract entitled
'Christianismos'. The accused succeeded in converting airman
Kafkas by taking advantage of the latter's inexperience in
theological matters and the influence he had on him due to his
position and rank."
The court also found the first applicant guilty of proselytising another
airman, Stefanos Voikos.
16. It sentenced him to five months' imprisonment for proselytising airman
Antoniadis, five months' imprisonment for proselytising airman Kokkalis,
five months' imprisonment for proselytising airman Voikos and seven months'
imprisonment for proselytising airman Kafkas. Overall, however, because some
of these periods were to run concurrently, the first applicant was ordered
to spend thirteen months in prison. The court ordered that these penalties
be converted to fines and not enforced provided the applicant did not commit
new offences in the following three years.
2. The second applicant
17. In respect of the second applicant, the court held as follows:
"The accused, while he was a military officer ... serving in
Unit X, committed the offence of proselytism in the military camp
of this unit between November 1986 and December 1987 by engaging
in several acts which ?gave rise to a single, albeit continuing,
breach of the relevant criminal provision. He took advantage of
the authority exercisable by him due to the difference in rank
over airman Georgiades Antoniadis, who served in the same unit. On
approximately seven occasions, on dates which have not been
specified, the accused tried to intrude on and change the
religious beliefs of airman Antoniadis by means of skilful
discussions with him concerning religion. The accused urged airman
Antoniadis, because of his youth, to study nothing but the Gospel,
where he told him he would find the truth, which differed from the
Orthodox dogma. He also tried, by means of skilful interpretation
of extracts from the Holy Gospel in accordance with the beliefs of
the sect of the Pentecost, to convince him that the Orthodox faith
was not correct and that he should adopt the beliefs of the
accused, urging him at the same time in a pressing manner to visit
during his leave the church of the Pentecostal sect in Athens.
The accused also committed the offence of proselytism in Volos in
1988 by ?taking advantage of the inexperience and intellectual
weakness of Mrs Anastassia Zounara. He tried on several occasions,
on dates which have not been specified, to intrude on and change
her religious beliefs by engaging in a skilful analysis of the
beliefs of the sect of the Pentecost and their difference from
those of the Orthodox faith. Elaborating on the correctness of the
former, he tried persistently to convince
her that the followers of the Pentecostal Church bore marks given
to them by God, that they could prophesy the future, that she and
her children were possessed by the devil who was fighting to keep
control over her, that she worshipped idols and demons and that
the Pentecostal church held the truth. He also urged her in a
pressing manner to be baptised and become a member of the
Pentecostal Church.
The accused also committed the offence of proselytism in Volos on
a date which has not been specified towards the beginning of June
1989. Having been summoned by Captain Ilias Baïramis, the accused
went to the house of Mr Apostolos Baïramis, Captain Baïramis's
brother, where Mr Charalampos Apostolidis, the brother-in-law of
the Baïramis brothers and a follower of the sect of the
Pentecostal Church, was in a delirious state under the influence
of his religious beliefs. He was foaming at the mouth, invoking
Christ's name and saying 'Thank you Christ, because I have known
the truth, I see the devil in my wife's and children's faces'. The
mere fact of the accused's presence calmed Mr Apostolidis, and the
former skilfully took advantage of this by attempting to intrude
upon and change the religious beliefs of Apostolos Baïramis and
Marigoula, Sotirios and Evangelis Baïrami, who were present during
the incident and had been impressed by it, and of a number of
neighbours who gathered afterwards. He preached to them,
elaborating on the beliefs of the sect of the Pentecostal Church
and telling them that these, and not those of the Orthodox Church,
were correct and that in 1992 the world would come to an end and
the church would be 'captured'. He urged them persistently and
importunately to believe in the true Christ and told them that, by
virtue of being Christian Orthodox, they had taken sides with the
devil."
18. The second applicant was sentenced to five months' imprisonment for
proselytising airman Antoniadis, five months' imprisonment for proselytising
Mrs Zounara, and eight months' imprisonment for proselytising the Baïramis
family and their neighbours, although he was only to serve twelve months
overall. The court ordered that these penalties be converted to fines and
not enforced provided the applicant did not commit new offences in the
following three years.
3. The third applicant
19. In respect of the third applicant, the court held as follows:
"The accused, while he was a military officer ... serving in
Unit X, committed the offence of proselytism in the military camp
of this unit between May 1987 and February 1988 by engaging in
several acts which ?gave rise to a single, albeit continuing,
breach of the relevant criminal provision. He acted with the aim
of intruding on and changing the religious beliefs of airman
Athanassios Kokkalis, an Orthodox Christian who served in the same
unit. Taking advantage of the trust inherent in the relationship
between a subordinate and a superior, the accused tried more than
50 times to convince airman Kokkalis that the teachings of the
Orthodox faith were not correct on a number of issues, such as the
virginity of the Holy Mother, the ranks of the priests and the
power of the Holy Spirit. He engaged with airman Kokkalis in
persistent and importunate discussions regarding the teachings of
the sect of the Pentecostal Church, of which the accused was a
follower, telling him that the teachings of the sect, rather than
those of the Orthodox Church, were correct. He urged him to visit
a place in Larissa where the followers of the Pentecostal Church
used to gather and to become a member of the sect and he gave him
a free copy of a periodical published by the followers of the
Pentecostal Church entitled 'Christianimos'. In the course of
these encounters the accused intentionally failed to reveal to
airman Kokkalis that he was a member of the Pentecostal sect.
Acting in the same capacity, the accused committed the offence of
proselytism in the same place for a period of four to five months
in 1988, ?acting with the aim of intruding on and changing the
religious beliefs of Mrs Anastassia Zounara, an Orthodox
Christian. He skilfully took advantage of her inexperience in
religious matters and her intellectual weakness, resulting from
her low level of education, and tried importunately to persuade
her to be baptised and become a member of the sect of the
Pentecostal Church. He told her constantly that he bore signs
given to him by God, that he could foresee the future and that she
and her children were possessed. His intention was to undermine
her faith in Orthodoxy and convert her to the sect of the
Pentecostal Church.
Acting in the same capacity, the accused committed the offence of
proselytism in the same place between spring 1989 and 18 August
1989, ?acting with the aim of intruding on and changing the
religious beliefs of airman Nikolaos Kafkas, an Orthodox Christian
who served in the same unit. Taking advantage of the trust
inherent in the relationship between a subordinate and a superior
and of airman Kafkas's naivety and inexperience, the accused tried
to persuade him to adhere to the sect of the Pentecostal Church.
He engaged in continual, persistent and importunate analysis of
his beliefs regarding the sect of the Pentecostal Church,
continually reading the Gospel which he interpreted in accordance
with his beliefs. He gave airman Kafkas publications of his sect
and took him to his place of worship. In this way, he succeeded in
converting airman Kafkas, taking advantage of his inexperience in
religious matters and the influence he had on him because of his
position and rank."
The court also found that the third applicant had engaged in the
proselytising of a warrant officer, Adjutant Theophilos Tsikas.
20. He was sentenced to eight months' imprisonment for proselytising airman
Kokkalis, five months' imprisonment for proselytising Mrs Zounara, five
months' imprisonment for proselytising Adjutant Tsikas and seven months'
imprisonment for proselytising airman Kafkas. He was to serve fourteen
months overall. The court ordered that these penalties be converted to fines
and not enforced provided the applicant did not commit new offences in the
following three years.
C. The appeal to the Courts-Martial Appeal Court
21. The applicants appealed immediately to the Courts-Martial Appeal Court
(Anatheoritiko Dikastirio), a court composed of five military judges. Their
appeal was heard on 7 October 1992.
22. In a judgment pronounced immediately after the hearing (no. 390/1992),
the Appeal Court rejected the defence's argument to the effect that the
accused had merely exercised a constitutional right and upheld most of their
convictions, using the same reasoning as the first instance court. It did,
however, reverse the conviction of the first applicant for proselytising
airman Voikos and that of the third applicant for proselytising Adjutant
Tsikas (see paragraphs 15 and 19 above).
23. The Appeal Court maintained the penalties imposed by the first instance
court on the first and third applicants in respect of the convictions it had
upheld. However, because of the quashing of the two convictions, their
overall sentences were reduced to eleven and twelve months respectively.
It reduced the second applicant's sentence to four months' imprisonment for
proselytising airman Antoniadis, four months for proselytising Mrs Zounara,
and six months for proselytising the Baïramis family and neighbours. His
overall sentence was reduced to ten months' imprisonment.
24. As none of the overall sentences imposed involved more than one year's
imprisonment, they were automatically converted by the court into pecuniary
penalties of 1,000 drachmas per day. The court ordered that the penalties
should not be enforced provided that the applicants did not commit new
criminal offences in the following three years.
D. The appeal to the Court of Cassation
25. The applicants appealed in cassation.
In a judgment delivered on 30 July 1993 (no. 1266/1993), the Court of
Cassation (Arios Pagos) found as follows:
"It follows from section 4 §§ 1 and 2 of Law No. 1363/38 [see
paragraph 27 below] that in order for the crime of proselytism ?
to be established, there must be a direct or indirect attempt to
intrude on the religious beliefs of a person of a different
religious persuasion with the aim of undermining those beliefs,
provided that the attempt is made using the means enumerated in a
non-exhaustive fashion in the above-mentioned Article, namely by
any kind of inducement or promise of an inducement or moral
support or material assistance, or by fraudulent means or by
taking advantage of the other person's inexperience, trust, need,
low intelligence or naïvety.
The above-mentioned provisions of this section ?are not contrary
to [the provisions of the Greek Constitution guaranteeing the
principle nullum crimen sine lege certa]; moreover, they are
perfectly consistent with Article 13 of the Constitution [see
paragraph 26 below], which provides that all known religions are
free since, under Article 13, proselytism is prohibited ?. The
argument to the contrary finds no support in the fact that under
[the previous Constitutions] the prohibition of proselytism was
designed to protect the then (and still) dominant religion,
whereas under the present Constitution that prohibition is
associated with freedom of conscience in religious matters
relating to all known religions. This reasoning is undeniably
consistent with both the letter and the spirit [of section 4],
pursuant to which protection from proselytism employing the
unlawful means set out therein is provided for the religious
convictions of all persons of different persuasions, ie. All those
belonging to a religion or dogma other than that of the author of
the proselytism, and not exclusively those professing the
principles of the Orthodox Church.
Furthermore, freedom of conscience in religious matters and of
thought, protected as a human right by the present Constitution
and by Articles 18 and 19 of the United Nations' Universal
Declaration and Articles 9 and 14 of the European Convention on
Human Rights, is not undermined by the above-mentioned criminal
provision, since it does not sanction the holding of religious
beliefs, which is completely free, but only any attempt to intrude
on another person's religious beliefs with the aim of changing
them. Such attempts are quite incompatible with religious freedom,
which creates an obligation to respect the religious convictions
of all those who hold different beliefs."
The court therefore rejected the applicants' appeal.
II. RELEVANT DOMESTIC LAW
A. The right to religious freedom under the Greek Constitution
26. Article 13 of the Greek Constitution provides, as relevant:
"1. Freedom of conscience in religious matters is inviolable. The
enjoyment of personal and political rights shall not depend on an
individual's religious beliefs.
2. There shall be freedom to practise any known religion;
individuals shall be free to perform their rites of worship
without hindrance and under the protection of the law. The
performance of rites of worship must not prejudice public order or
public morals. Proselytism is prohibited."
B. The law on proselytism
27. Section 4 of Law No. 1363/38, as amended by Law No. 1672/39, provides
as follows:
"1. Anyone engaging in proselytism shall be liable to imprisonment
and a fine of between 1,000 and 50,000 drachmas; he shall,
moreover, be subject to police supervision for a period of between
six months and one year to be fixed by the court when convicting
the offender.
2. By 'proselytism' is meant, in particular, any direct or
indirect attempt to intrude on the religious beliefs of a person
of a different religious persuasion (eterodoxos), with the aim of
undermining those beliefs, either by any kind of inducement or
promise of an inducement or moral support or material assistance,
or by fraudulent means or by taking advantage of the other
person's inexperience, trust, need, low intellect or naïvety.
3. The commission of such an offence in a school or other
educational establishment or philanthropic institution shall
constitute a particularly aggravating circumstance."
There is a considerable body of case-law interpreting and applying this
section: see the Court's Kokkinakis v. Greece judgment of 25 May 1993,
Series A no. 260-A, pp. 13-15, §§ 17-21.
PROCEEDINGS BEFORE THE COMMISSION
28. In their applications lodged with the Commission on 28 January 1994
(nos. 26377/94, 26378/94 and 23372/94), Mr Larissis, Mr Mandalarides and Mr
Sarandis claimed that Article 4 of Law No. 1363/38 was too broad and vague
to be compatible with the requirements of legal certainty under
Articles 7, 9 § 2 and 10 § 2 of the Convention. In addition, they complained
that their convictions for proselytism amounted to violations of their
rights to freedom of religion and expression under Articles 9 and 10 of the
Convention, and were discriminatory, contrary to Article 14 taken in
conjunction with Article 9.
29. On 27 November 1995, the Commission ordered the joinder of the three
applications under Rule 35 of its Rules of Procedure and declared them
admissible.
30. In its report of 12 September 1996 (Article 31), the Commission
expressed the opinion that there had been violations of Article 9 of the
Convention insofar as the second applicant was convicted of proselytising
the Baïramis family and their neighbours (unanimously) and insofar as the
second and third applicants had been convicted of proselytising Mrs Zounara
(24 votes to 5). However, it found no violation of Article 9 insofar as the
first and second applicants were convicted of proselytising airman
Antoniadis and the first and third applicants were convicted of
proselytising airman Kokkalis (28 votes to 1), and insofar as the first and
third applicants were convicted of proselytising airman Kafkas (23 votes
to 6).
It further concluded that there had been no violation of Article 7 of the
Convention (28 votes to 1) and that no separate issue arose under Article 10
of the Convention (unanimously) nor under Article 9 in conjunction with
Article 14 insofar as the second applicant was convicted of proselytising
the Baïramis family and neighbours and the second and third applicants were
convicted of proselytising Mrs Zounara (unanimously). Finally, it concluded
that there had been no violation of Articles 9 and 14 taken together insofar
as the first and second applicants were convicted of proselytising airman
Antoniadis and the first and third applicants were convicted of
proselytising airmen Kokkalis and Kafkas (unanimously).
The full text of the Commission's opinion and of the three separate opinions
contained in the report is reproduced as an annex to this judgment.[fn4]
FINAL SUBMISSIONS TO THE COURT
31. In their memorial and at the hearing before the Court, the Government
maintained that no violation of the Convention had arisen in the applicants'
case.
The applicants, however, asked the Court to find violations of Articles 7,
9, 10 and 14 and to award them just satisfaction under Article 50.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
32. The applicants contended that the law against proselytism failed to
comply with Article 7 of the Convention, which provides:
"1. 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. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was
committed.
2. This article shall not prejudice the trial and punishment of
any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognised by civilised nations."
They argued that the Greek law violated the principle enshrined in Article 7
that only the law can define a crime and prescribe a penalty (nullum crimen,
nulla poena sine lege), since it was impossible to predict whether certain
types of behaviour would lead to a prosecution for proselytism. They
contended that this deficiency in the law was evident both from the text of
section 4 § 2 (see paragraph 27 above) and the jurisprudence which had
arisen from it.
For example, the use of the words "in particular" implied that the
subsequent definition was only one form of proselytism punishable under the
statute, and other expressions employed, such as "direct or indirect" and
"any kind of inducement or promise of an inducement or moral support or
material assistance" were so broad and vague as to embrace almost any form
of practical evangelism. The case-law which had grown out of section 4 (see
the examples set out in the Court's Kokkinakis v. Greece judgment of 25 May
1993, Series A No. 260-A, p. 13, § 18), showed that no-one in Greece could
possibly determine in advance whether or not his religious actions would
constitute the offence of proselytism.
33. The Government and the Commission, referring to the above-mentioned
Kokkinakis judgment, were both of the opinion that there had been no
violation of this provision.
34. The Court recalls its finding in the above-mentioned Kokkinakis case
(op. cit., p. 22, § 52) that the definition of the offence of proselytism
contained in section 4, together with the settled body of national case-law
interpreting and applying it, satisfied the conditions of certainty and
foreseeability prescribed by Article 7.
It is not persuaded that the position in Greek law has become any less clear
in the period of under five years since that evaluation. Bearing in mind
that the need to avoid excessive rigidity and to keep pace with changing
circumstances means that many laws are inevitably couched in terms which, to
a greater or lesser extent, are vague (ibid., p. 19, § 40), it sees no
reason to reverse its previous decision.
35. It follows that there has been no violation of Article 7 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
36. The applicants claimed that their prosecution, conviction and
punishment for proselytism amounted to violations of Article 9 of the
Convention, which states:
"1. Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief, in
worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
The Government denied that there had been any such breach. The Commission
found that there had been no violation with regard to the measures taken
against the applicants for the proselytising of the airmen, although it
found that Article 9 had been violated insofar as the proselytising of
civilians was concerned (see paragraph 31 above).
37. The Court must consider whether the applicants' Article 9 rights were
interfered with and, if so, whether such interference was "prescribed by
law", pursued a legitimate aim and was "necessary in a democratic society"
within the meaning of Article 9 § 2.
A. Interference
38. The Court considers, and indeed it was not disputed by those appearing
before it, that the prosecution, conviction and punishment of the applicants
for offences of proselytism amounted to interferences with the exercise of
their rights to "freedom ?to manifest [their] religion or belief" (see the
Kokkinakis judgment cited in paragraph 32 above, p.18, § 36).
B. "Prescribed by law"
39. The applicants, for the same reasons they had advanced in support of a
finding of violation of Article 7 (see paragraph 32 above), contended that
the measures taken against them were not "prescribed by law", as required by
Article 9 § 2.
The Government and the Commission were of the contrary opinion, again
relying on the Court's Kokkinakis judgment.
40. The Court recalls that the expression "prescribed by law" in Article 9
§ 2 requires inter alia that the law in question must be both adequately
accessible to the individual and formulated with sufficient precision to
enable him to regulate his conduct (see, mutatis mutandis, the Sunday Times
v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A No. 30,
p. 31, § 49).
41. It refers to its finding in the above-mentioned Kokkinakis case that
the measures taken against that applicant under section 4 were "prescribed
by law" (op. cit., pp. 19-20, §§ 40-41). As the Court has already concluded
in relation to Article 7 (see paragraphs 34-35 above), it is not satisfied
that the position in Greek law has changed subsequently or that it should
depart from its earlier assessment for any other reason.
42. In conclusion, the measures in question were "prescribed by law" within
the meaning of Article 9 § 2.
C. Legitimate aim
43. The Government, with whom the Commission agreed, reasoned that the
relevant action was taken against the applicants with the aim of protecting
the rights and freedoms of others and also, as far as the measures taken
following the proselytising of the airmen were concerned, with the aim of
preventing disorder in the armed forces and thus protecting public safety
and order.
The applicants made no particular submission in this connection.
44. Having regard to the circumstances of the case and, particularly, the
terms of the national courts' decisions, the Court considers that the
impugned measures essentially pursued the legitimate aim of protecting the
rights and freedoms of others (see also the above-mentioned Kokkinakis
judgment, p. 20, § 44).
D. "Necessary in a democratic society"
45. The Court emphasises at the outset that while religious freedom is
primarily a matter of individual conscience, it also implies, inter alia,
freedom to "manifest [one's] religion, including the right to try to
convince one's neighbour, for example through "teaching" (ibid., p. 17,
§ 31).
Article 9 does not, however, protect every act motivated or inspired by a
religion or belief. It does not, for example, protect improper proselytism,
such as the offering of material or social advantage or the application of
improper pressure with a view to gaining new members for a Church (ibid.,
p. 21, § 48).
46. The Court's task is to determine whether the measures taken against the
applicants were justified in principle and proportionate. In order to do
this, it must weigh the requirements of the protection of the rights and
liberties of others against the conduct of the applicants (ibid., p. 21,
§ 47). Since different factors come into the balance in relation to the
proselytising of the airmen and that of the civilians, it will assess the
two matters separately.
1. The proselytising of the airmen
47. The Government contended that the applicants had abused the influence
they enjoyed as Air Force officers and had committed the acts in question in
a systematic and repetitive manner. The measures taken against them were
justified by the need to protect the prestige and effective operation of the
armed forces and to protect individual soldiers from ideological coercion.
48. The applicants submitted that the practice of evangelism within a
superior/subordinate relationship could not without more be equated to an
abuse of trust. They emphasised that the airmen were adults, able to die for
their country, and that there was no evidence that the applicants had used
their positions to coerce or override the wills of their subordinates. To
interpret Article 9 so as to restrict evangelism to "equals" would be a
severe limitation of religious freedom, both within the armed forces and in
other contexts.
49. The Commission found that the interference could be justified as
ensuring that the three airmen's religious beliefs were respected, in view
in particular of the special character of the relationship between a
superior and a subordinate in the armed forces, which rendered the
subordinate more susceptible to influence in a variety of matters including
religious beliefs.
50. The Court observes that it is well established that the Convention
applies in principle to members of the armed forces as well as to civilians.
Nevertheless, when interpreting and applying its rules in cases such as the
present, it is necessary to bear in mind the particular characteristics of
military life and its effects on the situation of individual members of the
armed forces (see the Engel and Others v. the Netherlands judgment of 8 June
1976, Series A No. 22, p. 23, § 54, and, mutatis mutandis, the Grigoriades
v. Greece judgment of 25 November 1997 - ?, Reports of Judgments and
Decisions - 1997-?, p. ?, § 45).
51. In this respect, the Court notes that the hierarchical structures which
are a feature of life in the armed forces may colour every aspect of the
relations between military personnel, making it difficult for a subordinate
to rebuff the approaches of an individual of superior rank or to withdraw
from a conversation initiated by him. Thus, what would in the civilian world
be seen as an innocuous exchange of ideas which the recipient is free to
accept or reject, may, within the confines of military life, be viewed as a
form of harassment or the application of undue pressure in abuse of power.
It must be emphasised that not every discussion about religion or other
sensitive matters between individuals of unequal rank will fall within this
category. Nonetheless, where the circumstances so require, States may be
justified in taking special measures to protect the rights and freedoms of
subordinate members of the armed forces.
52. The Court refers to the evidence adduced in the domestic proceedings
(see paragraphs 8-10 above).
It notes that airmen Antoniadis and Kokkalis testified that the applicants
approached them on a number of occasions in order to persuade them to
convert and to visit the Pentecostal Church. Mr Antoniadis stated that he
felt obliged to take part in the discussions because the applicants were his
superior officers, and Mr Kokkalis said that the applicants' approaches
bothered him. As the Commission found, there is no evidence that the
applicants used threats or inducements. Nonetheless, it appears that they
were persistent in their advances and that these two airmen felt themselves
constrained and subject to a certain degree of pressure owing to the
applicants' status as officers, even if this pressure was not consciously
applied.
53. The Court notes that, contrary to the evidence given by his father at
first instance, airman Kafkas testified before the Appeal Court that the
applicants did not apply any pressure to him to become a member of the
Pentecostal Church and that he himself initiated the religious discussions
that took place between them (see paragraph 10 above). However, the Appeal
Court, having had the opportunity to assess the evidence including
Mr Kafkas's demeanour and credibility, upheld the first instance court's
decision that the first and third applicants had unlawfully taken advantage
of the influence they had over Mr Kafkas due to their position and rank (see
paragraphs 15, 18 and 22 above). The Court, considering that the domestic
courts were better placed than itself to determine the facts of the case,
and taking into account the matters referred to in paragraph 51 above, is of
the view that Mr Kafkas, like the other two airmen, must have felt to a
certain extent constrained, perhaps obliged to enter into religious
discussions with the applicants, and possibly even to convert to the
Pentecostal faith.
54. In view of the above, the Court considers that the Greek authorities
were in principle justified in taking some measures to protect the lower
ranking airmen from improper pressure applied to them by the applicants in
their desire to promulgate their religious beliefs. It notes that the
measures taken were not particularly severe and were more preventative than
punitive in nature, since the penalties imposed were not enforceable if the
applicants did not reoffend within the following three years (see
paragraphs 16, 18, 20 and 24 above). In all the circumstances of the case,
it does not find that these measures were disproportionate.
55. It follows that there has been no violation of Article 9 with regard to
the measures taken against the first applicant for the proselytising of
airmen Antoniadis, Kokkalis and Kafkas, those taken against the second
applicant for the proselytising of airman Antoniadis or those taken against
the third applicant for the proselytising of airmen Kokkalis and Kafkas.
2. The proselytising of the civilians
56. The Government reminded the Court that under section 4, only improper
proselytism is punishable. They contended that the second and third
applicants had systematically exploited the family problems and
psychological distress suffered by the Baïramis family and Mrs Zounara
andhad thus applied unlawful pressure. Furthermore, the penalties imposed on
them were not particularly onerous.
57. The Commission, with whom the applicants agreed, considered that the
circumstances leading to the conviction of the second and third applicants
for proselytising the Baïramis family and Mrs Zounara were similar to those
of the Kokkinakis case (cited in paragraph 32 above), in that the "targets"
of the proselytism were not military personnel and the domestic courts
established the defendants' guilt by reciting the words of section 4 without
adequately explaining in what way the methods employed by the accused had
been "improper". It had not been satisfactorily demonstrated that their
convictions on these counts were "necessary in a democratic society".
58. The Court recalls that the second applicant was convicted under
section 4 for preaching on a single occasion to the Baïramis family and
their neighbours, following an incident when he had managed to calm a member
of the Baïramis family who was in a delirious state. Together with the third
applicant, he was also convicted for the proselytising of Mrs Zounara, whom
they had attempted to convert on a number of occasions during a period when
she was experiencing marital problems (see paragraphs 11, 12, 17 and 19
above).
59. The Court finds it of decisive significance that the civilians whom the
applicants attempted to convert were not subject to pressures and
constraints of the same kind as the airmen.
With regard to the Baïramis family and their neighbours, none of the
evidence indicates that they felt obliged to listen to the applicant or that
his behaviour towards them was improper in any way.
As for Mrs Zounara, it was not disputed before the domestic courts that she
initially sought out the applicants in an attempt to understand the reasons
behind her husband's behaviour. Whilst it is clear that during the period
she was in contact with them she was in a state of distress brought on by
the breakdown of her marriage, the Court does not find it established that
her mental condition was such that she was in need of any special protection
from the evangelical activities of the applicants or that they applied
improper pressure to her, as was demonstrated by the fact that she was able
eventually to take the decision to sever all links with the Pentecostal
Church.
60. For the above reasons, the Court does not consider that the second and
third applicants' convictions on the charges in question were justified in
the circumstances of the case.
61. It follows that there has been a violation of Article 9 with regard to
the measures taken against the second applicant for the proselytising of the
Baïramis family and their neighbours and those taken against the second and
third applicants for the proselytising of Mrs Zounara.
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
62. The applicants claimed that the measures taken against them had also
interfered with their rights to freedom of expression, in breach of
Article 10 of the Convention, which states, as relevant:
"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 ?
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."
63. The Commission, with whom the Government agreed, found that no separate
issue arose under this provision.
64. Having regard to its scrutiny of this case in the context of Article 9,
the Court also agrees that no separate issue arises in relation to
Article 10.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH
ARTICLE 9
65. The applicants alleged that they had been the victims of discrimination
contrary to Article 14 of the Convention, which provides:
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
They contended that the law against proselytism was applied only to members
of religious minorities in Greece, no follower of the Orthodox Church ever
having been convicted of the offence under section 4.
66. The Government made no particular submission in relation to this
complaint.
67. The Commission found that no separate issue arose under Articles 9
and 14 taken together in relation to the measures directed against the
second and third applicants for the proselytising of the civilians. As far
as the measures taken against the applicants for the proselytising of the
airmen were concerned, since no material was provided to substantiate the
complaint under Articles 9 and 14, it reached a finding of no violation.
68. The Court notes that the applicants alleged in their memorial that the
Greek law against proselytism was applied in a discriminatory manner.
However, they have not produced any evidence to suggest that an officer in
the armed forces who attempted to convert his subordinates to the Orthodox
Church in a manner similar to that adopted by the applicants would have been
treated any differently. It follows that no violation of Articles 9 and 14
taken together has been established in connection with the proselytising of
the airmen.
69. Having found a violation of Article 9 with regard to the measures taken
against the second and third applicants for the proselytising of the
Baïramis family and Mrs Zounara, the Court considers that no separate issue
arises in that connection under Articles 9 and 14 taken together.
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION
70. The applicants requested just satisfaction pursuant to Article 50 of
the Convention, which states:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of
this decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured party."
A. Non-pecuniary damage
71. The applicants sought 500,000 drachmas ("GRD") each to compensate them
for moral and material prejudice. This was the amount that the Court had
awarded to Mr Kokkinakis in 1993 (op. cit., p. 23, § 60).
72. At the hearing before the Court, the Government submitted that, in the
event of the Court finding a violation, such finding would in itself
constitute sufficient just satisfaction.
73. On the same occasion, the Commission's Delegate commented that the fact
that the domestic courts had not sought to take the Court's case-law into
account was a particular element to be taken into consideration under
Article 50.
74. The Court observes that it has found violations of the Convention in
respect only of the measures taken against the second applicant for the
proselytising of the Baïramis family and the second and third applicants for
the proselytising of Mrs Zounara (see paragraphs 58-61 above). The first
applicant is not, therefore, entitled to any just satisfaction under
Article 50.
Making its assessment on an equitable basis, it awards 500,000 GRD each to
Mr Mandalarides and Mr Sarandis.
B. Costs and expenses
75. The applicants also requested 11,800 pounds sterling ("GBP") to cover
the legal costs and expenses of the proceedings before the Commission and
Court in Strasbourg.
76. The Government considered the amount claimed to be excessive and
submitted that the sum awarded should not exceed GRD one million.
77. The Court again notes in this context that it does not find any
violation of the Convention in respect of the first applicant and that it
finds in favour of the second and third applicants in connection with only
one part of their complaints, namely in relation to the measures taken
against them for the proselytising of civilians.
In the light of the above, it awards to the second and third applicants part
of the costs and expenses claimed, in total GBP 6,000, together with any
value added tax which may be payable, less the amount received by way of
legal aid from the Council of Europe.
C. Default interest
78. According to the information available to the Court, the relevant
statutory rates of interest applicable at the date of adoption of the
present judgment are 6% per annum in Greece and 8% per annum in the United
Kingdom.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been no violation of
Article 7 of the Convention;
2. Holds by eight votes to one that there has been no violation of
Article 9 with regard to the measures taken against the first,
second and third applicants for the proselytising of airmen
Antoniadis and Kokkalis;
3. Holds by seven votes to two that there has been no violation of
Article 9 of the Convention with regard to the measures taken
against the first and third applicants for the proselytising of
airman Kafkas;
4. Holds by seven votes to two that there has been a violation of
Article 9 with regard to the measures taken against the second and
third applicants for the proselytising of the civilians;
5. Holds unanimously that no separate issue arises under
Article 10 of the Convention;
6. Holds unanimously that there has been no violation of
Articles 9 and 14 of the Convention taken together in relation to
the measures taken against the first, second and third applicants
for the proselytising of the airmen;
7. Holds unanimously that no separate issue arises under
Articles 9 and 14 taken together in relation to the measures taken
against the second and third applicants for the proselytising of
the civilians;
8. Holds by seven votes to two
(a) that the respondent State is to pay to the second and third
applicants, within three months, in respect of compensation for
non-pecuniary damage, GRD 500,000 (five hundred thousand drachmas)
each;
(b) that the respondent State is to pay to the second and third
applicants, within three months, in respect of costs and expenses,
GBP 6,000 (six thousand pounds sterling) in total, together with
any value added tax which may be payable, less 11,149 (eleven
thousand, one hundred and forty-nine) French francs to be
converted into pounds sterling at the rate applicable on the date
of delivery of the present judgment;
(c) that simple interest shall be payable from the expiry of the
above-mentioned three months until settlement, at an annual rate
of 6% in respect of the amount awarded in drachmas and at an
annual rate of 8% in respect of the amount awarded in pounds
sterling;
9. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 24 February 1998.
Signed: Feyyaz GÖLCÜKLÜ
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules
of Court A, the following opinions are annexed to this judgment:
(a) concurring opinion of Mr De Meyer;
(b) partly dissenting opinion of Mr Valticos joined by Mr
Morenilla;
(c) partly dissenting opinion of Mr Repik;
(d) partly dissenting opinion of Mr van Dijk.
Initialled: F.G.
Initialled: H.P.
CONCURRING OPINION OF JUDGE DE MEYER
(Provisional translation)
The law in issue in the present case is contrary to the Convention in its
very principle, since it directly encroaches on the very essence of the
freedom everyone must have to manifest his religion.
However, in so far as it was applied to attempts to convert servicemen made
by their superior officers, those officers cannot have been victims of an
infringement of the freedom concerned since in the present case they had
abused their position and rank.
PARTLY DISSENTING OPINION OF JUDGE VALTICOS JOINED BY JUDGE MORENILLA
(Provisional translation)
The instant case, like various others, bears strong similarities, although
attended by aggravating circumstances, to the Kokkinakis case (judgment of
25 May 1993, Series A no. 260), which gave rise to a variety of opinions
within the Court. I will not reiterate in detail the position I adopted on
that occasion, but I refer the reader to it.
As in the Kokkinakis case, I maintain that any attempt going beyond a mere
exchange of views and deliberately calculated to change an individual's
religious opinions constitutes a deliberate and, by definition, improper act
of proselytism, contrary to "freedom of thought, conscience and religion" as
enshrined in Article 9 of the Convention. Such acts of proselytism may take
forms that are straightforward or devious, that may or may not be an abuse
of the proselytiser's authority and may be peaceful or - and history has
given us many bloodstained examples of this - violent. Attempts at
"brainwashing" may be made by flooding or drop by drop, but they are
nevertheless, whatever one calls them, attempts to violate individual
consciences and must be regarded as incompatible with freedom of opinion,
which is a fundamental human right.
The measures taken nationally to prohibit and, if need be, punish them
cannot therefore be regarded as amounting to breaches of the Convention.
In the instant case I concur in part of the Court's judgment and share its
opinion that there has been no violation of the Convention as regards the
punishment of the officers' attempted proselytising of soldiers who could
have been influenced in part by the officers' authority over them.
However, I consider that even in the case of these officers' attempts to
proselytise civilians, the penalties to which these gave rise were justified
since the prestige of the officers' uniform may have had an effect even on
civilians and, at all events, such deliberate acts of proselytism are
contrary to the respect for freedom of conscience and religion guaranteed in
the Convention.
PARTLY DISSENTING OPINION OF JUDGE REPIK
(Provisional translation)
I regret that I am unable to agree with the majority about compliance with
Article 7 or the conclusion that the interference with the applicants'
exercise of their right to manifest their religion was "prescribed by law".
Compliance with Article 7
It is true that in the Kokkinakis v. Greece case (judgment of 25 May 1993,
Series A no. 260-A, pp. 22, §§ 52-53), the Court ruled that section 4 of Law
no. 1363/1938 on the offence of proselytism was compatible with Article 7 of
the Convention. However, the nature of the problem has changed since then.
As I understand it, the Court was saying in its judgment in that case that
the Greek law in question satisfied the requirements of Article 7 of the
Convention only with the assistance provided by the case-law of the Greek
courts, which, being published and accessible, complemented the letter of
section 4 and enabled individuals to regulate their conduct in this respect.
The law itself was one of those which, to a greater or lesser extent, were
couched in vague terms and whose interpretation and application depended on
practice (ibid., pp. 19 and 22, §§ 40 and 52).
However, albeit in connection with the necessity of the interference rather
than its legality, the Court laid down the principle that there was a need
to distinguish between Christian witness, which was the true form of
evangelism and an essential duty of every believer and every Church, on the
one hand, and improper proselytism, which was not compatible with the
respect due to others' freedom of thought, conscience and religion, on the
other. And it went on to add a proviso, namely that the criteria adopted by
the Greek legislature were reconcilable with that distinction if and in so
far as (my emphasis) they were designed only to punish improper proselytism
(ibid., p. 21, § 48). It was apparently up to the courts to draw this
distinction by means of an appropriate interpretation of the terms of the
law. In the case concerned, the Court noted that in finding Mr Kokkinakis
guilty the Greek courts had done no more than reproduce the wording of the
law, without sufficiently specifying in what way he had attempted to
convince his neighbour by improper means (ibid., p. 21, § 49).
I leave aside the question which suggests itself immediately, that is,
whether in a system of written law the principle that offences and penalties
must be defined by law is respected where the line separating what is
criminal conduct from what is merely the normal exercise of a freedom
guaranteed by the Constitution and the Convention is drawn by judges rather
than by statute. Does that not put the judge in the position where he is
required not just restrictively to interpret the law, but instead himself to
define an offence which, as drafted, is so broad as to embrace conduct
which ought to remain lawful?
Although the case-law of the Greek courts, which was scrutinised by the
Court in the Kokkinakis judgment (op. cit., pp. 13-14, §§ 17-21), is not by
any means of one piece and contains contradictions, the Court's expectation
that conviction would ensue only in cases of improper proselytism could
justifiably be based on the fact that in a judgment of 1975, in which it
reversed its previous case-law, the Court of Cassation had removed the
effects of certain vague terms in the law, notably the words "in
particular". But that expectation has not been fulfilled. As the Commission
observed in paragraphs 69-70 of its report and as its Delegate pointed out
at the hearing, the Court of Cassation in the present case adopted an
approach markedly different from the Court's, failing to distinguish between
the use of proper and improper means and reverting to its previous case-law
to the effect that the means set out in the law were not exhaustively listed
and, a fact which to my mind is even more significant, emphasising the
subjective elements of the offence, namely the so-called intrusion or
attempt to intrude, directly or indirectly, on the religious beliefs of
another with the aim of undermining those beliefs. The Court, by drawing a
distinction between proper and improper means, has endeavoured to identify
some objective element which, in a given individual's conduct, would be the
only criterion capable of providing anything like a reliable indication
whether a criminal offence has been committed. The Court of Cassation, on
the other hand, has once more shifted its emphasis onto subjective elements,
which do not provide a suitable criterion for distinguishing between proper
and improper proselytism. In the instant case the Court has not taken into
account this change of position on the part of the Court of Cassation.
Is it the fault of the law or rather of its interpretation and application
by the Greek courts that the limits of its scope have again become
considerably more obscure, as Mrs Liddy rightly pointed out in her
dissenting opinion annexed to the Commission's report. The difficulty of
applying the law in such a way so as not to encroach unduly on the freedoms
guaranteed by the Convention is obvious. It is no less obvious that the
domestic courts did not succeed in making up for the deficiencies of the
law. The case-law, including the case-law of the highest Greek court, is
very inconsistent; far too frequently there are prosecutions and even
convictions for conduct about which there is nothing improper (for example,
the distribution of religious literature). It is the Strasbourg Court which
has striven, after the event, to draw certain distinctions in this area, but
those distinctions do not flow necessarily from the law, and in fact the
domestic courts still fail to discern them in it.
That being the case, a believer who tries to spread his religious beliefs
can never be certain whether his conduct is illegal or not. The law is not
sufficiently precise and its effects are therefore not sufficiently
foreseeable; it cannot guarantee legal certainty or equality of treatment,
nor can it afford protection against arbitrary measures by the authorities
responsible for applying it.
I am unable to conclude that the law in question satisfies the requirements
of Article 7 and I accordingly consider that this provision has been
breached.
Article 9
For the same reasons, I am not convinced that the interference with the
applicants' exercise of their right to manifest their religion was
"prescribed by law" within the meaning of Article 9 § 2.
There is nothing in Greek legislation or the case-law of the Greek courts
pertaining to religious discussion in the armed forces. Nor do the decisions
of the domestic courts concerned draw any distinction between proselytising
of servicemen and proselytising of civilians. Once again it was the Court,
following the Commission's example, which introduced this distinction after
the event. I do not see how the applicants could have foreseen with the
requisite degree of certainty that their conduct towards the servicemen
would be illegal whereas their conduct towards other persons would not.
PARTLY DISSENTING OPINION OF JUDGE VAN DIJK
I felt unable to join the majority in one part of their conclusion, namely
that concerning the compatibility with Article 9 of the Convention of the
conviction of the first and third applicants for allegedly proselytising
airman Kafkas.
I agree with the general reasoning, contained in paragraph 51 of the
judgment, especially the statement that what would in the civilian world be
seen as an innocuous exchange of ideas which the recipient is free to accept
or reject, may, within the confines of military life, be viewed as a form of
harassment or the application of undue pressure in abuse of power. However,
in that same paragraph the Court points to the fact that not every
discussion about religion or other sensitive matters between individuals of
unequal rank will fall within this category.
Like Mr Schermers and the four other members of the Commission who attached
a partially dissenting opinion to the Commission's report in this case, I am
of the opinion that it should be possible to rebut the assumption of undue
influence exercised by a higher ranking over a lower ranking person in the
army. Whereas the testimonies of airmen Antoniadis and Kokkalis before the
domestic courts confirmed the said assumption, airman Kafkas testified
before the Appeal Court that he made the initial contact with the third
applicant; that, later on, it was he who sought the first and third
applicants' advice; and that no pressure was ever put on him (paragraph 10
of the judgment).
The majority refer to the way in which the Appeal Court assessed this
evidence, "including Mr Kafkas's demeanour and credibility", and accept it,
"considering that the domestic courts were better placed than itself to
determine the facts of the case" (see paragraph 53 of the judgment). The
Court was competent, however, when assessing the proportionality of the
limitation, to give its view on the fact that the Appeal Court, although it
heard Mr Kafkas's own testimony, adopted the reasoning of the first instance
court which had not heard airman Kafkas as a witness but only his father. In
that same context, the majority should also have given their view as to why
airman Kafkas's "demeanour and credibility" were in issue - presumably
because he had been converted to the Pentecostal Church in the meantime -
while the same was not true for his father as a witness, although the latter
may be assumed to have been displeased by his son's conversion. At the very
least, it would seem unsatisfactory that the Appeal Court did not deem it
necessary to assess the statements of these two witnesses in relation to
each other. All in all, I find it difficult to understand why the Court
should accept, without any examination and supervision, the domestic courts'
findings with regard to the proselytising of the airmen, while takinga
critical view towards their findings concerning the proselytising of the
civilians. I am of the opinion that, in these circumstances, the Court
should not have deferred to the domestic courts on the question of the
evidence of airman Kafkas and his father and should, in the absence of any
counter-indication, have given greater weight to the testimony of the
alleged victim of the proselytism than to that of a witness whose testimony
was based upon hear-say information.
Since in the material submitted to the Court I cannot find any overriding
evidence that airman Kafkas's discussions on religion and subsequent
conversion were not prompted by his own free will, I cannot join the
majority's conclusion that there was a pressing social need to prosecute and
punish those whose guidance he sought on that road, albeit that they were
his military superiors.
Footnotes
[fn1] . This summary by the registry does not bind the Court.
[fn2] . The case is numbered 140/1996/759/958-960. The first number is the
case's position on the list of cases referred to the Court in the relevant
year (second number). The third number indicates the case's position on the
list of cases referred to the Court since its creation and the last two
numbers indicate its position on the list of corresponding originating
applications to the Commission.
[fn3] . Rules 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.
[fn4] . Note by the Registrar. For practical reasons this annex will appear
only with the printed version of this judgment (in Reports of Judgments and
Decisions 1998), but a copy of the Commission's report is available from the
registry.
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