EUROPEAN COURT OF HUMAN RIGHTS
In the case of Ahmet Sadik v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr B. Repik,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 30 March, 30 August and
25 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 46/1995/552/638. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 29 May 1995 and by the Government
of the Hellenic Republic ("the Government") on 4 July 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 18877/91) against Greece lodged with the Commission under
Article 25 (art. 25) by a Greek national, Mr Sadik Ahmet Sadik, on
11 July 1991. The applicant died on 24 July 1995; his wife,
Mrs Isik Ahmet, and his two children, Mr Levent Ahmet and
Miss Funda Ahmet, stated that they wished to continue the proceedings.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Articles 44 and 48 (art. 44,
art. 48). The object of the request and of the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 10 of
the Convention (art. 10).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (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) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 8 June 1995, in the presence of the
Registrar, the President drew by lot the names of the other
seven members, namely Mr S.K. Martens, Mr I. Foighel,
Mr J.M. Morenilla, Mr F. Bigi, Sir John Freeland, Mr B. Repik and
Mr K. Jungwiert (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently Mr A.B. Baka, substitute
judge, replaced Mr Bigi, who had died (Rules 21 para. 4 and 22
para. 1).
On 25 August 1995 the Registrar was informed of the applicant's
death and later that his widow and children wanted the proceedings to
continue and wished to participate in them, retaining the applicant's
lawyer as their representative. For practical reasons, Mr Ahmet Sadik
will continue to be referred to in this judgment as "the applicant",
although Mrs Isik Ahmet and her children are now to be regarded as
having this status (see the Vocaturo v. Italy judgment of 24 May 1991,
Series A no. 206-C, p. 29, para. 2).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). The
applicant's memorial was received at the registry on 10 January 1996
and the Government's on 11 January. On 30 January the Government filed
a number of documents, having been given leave to do so by the
President on 14 December 1995. On 12 February the Secretary to the
Commission informed the Registrar that the Delegate of the Commission
did not intend to submit any written observations.
By a letter received on 22 December 1995 Rights International,
an American non-governmental organisation, sought leave to submit
written observations under Rule 37 para. 2. On 25 January 1996 the
President decided not to give it leave to do so.
On 6 March 1996, after the time-limit for the submission of
written observations by those appearing before the Court had expired,
the applicant's lawyer filed at the registry a report by Helsinki Watch
published in 1992 following a fact-finding mission carried out by that
organisation in Western Thrace. At its preparatory meeting on
27 March 1996 the Court decided to admit this document and the
President gave the Government leave to reply, which they did on
30 April 1996.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
27 March 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr V. Kondolaimos, Adviser,
Legal Council of State, Delegate of the Agent,
Mr D. Spinelis, Lecturer,
Athens University,
Mrs V. Pelekou, Legal Assistant,
Legal Council of State,
Mrs M. Vondikaki-Telalian, Adviser, Legal Service
of the Ministry of Foreign Affairs, Counsel;
(b) for the Commission
Mr B. Conforti, Delegate;
(c) for the applicant
Mr T. Akillioglu, avukat (lawyer) at the Ankara Bar
and university lecturer, Counsel.
The Court heard addresses by Mr Conforti, Mr Akillioglu,
Mr Kondolaimos, Mr Spinelis and Mrs Pelekou. The Government's
representative produced certain documents at the hearing, having been
invited to do so by the Court.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Ahmet Sadik, a Greek national of the Muslim faith, was born
in 1949 and lived in Komotini (Western Thrace). He was a doctor,
publisher of the weekly newspaper Güven ("Trust") and a member of the
Greek Parliament. He died on 24 July 1995 in a road accident near
Komotini.
A. The background to the case
7. The applicant was the sole candidate of the political party
Güven - representing part of the Muslim population of Western Thrace -
to win a seat in the parliamentary election of June 1989. As no
government emerged from that election, a fresh poll was planned for
November 1989 in which the applicant intended to stand as a candidate.
8. On various dates between 16 October and 17 November 1989
Mr Ahmet Sadik published in the newspaper Güven and circulated in the
region a number of communiqués, including the following:
"TO THE TURCO-MUSLIM ELECTORATE OF THE DEPARTMENT OF RODOPI
In response to the repeated requests of the
Turco-Muslim electorate of the department of Rodopi, we,
journalist Molla ismail (of Rodopi), Dr Sadik Ahmet and
theologian ibrahim Serif, have decided to stand in the
general election of 5 November as members of the independent
Güven list. The Turkish community of Western Thrace,
especially since 1974, has been through some unhappy
experiences at the hands of political parties. At the
elections of 18 June, in an upsurge of unity, it placed its
trust in the independent Güven list. It asserted its identity
and took its destiny into its own hands by electing a member
of that list to represent it in Parliament. For the elections
of 5 November it is equally determined to send to Parliament
a representative who enjoys its trust.
After the historic victory won on 18 June the Turkish electors
of the department of Rodopi never again wish to return to the
old parties and live once more the days when they were
despondent and crushed.
Moreover, we suffer when we observe the manoeuvres of the other
parties, who, in order to win the precious Turco-Muslim vote
in Western Thrace, are playing on the fears of the people in
our towns and villages. Some who seem to be of our own kind
still dare, under the pretext of defending the rights of the
Turco-Muslim community in Western Thrace, to call for the votes
of our honest, fair-minded fellow citizens. It is painful to
see that these adventurers can still walk abroad among us. The
only thing the members of the Turco-Muslim community of
Western Thrace want is to live in dignity in the country where
they were born and have grown up. No force will halt their
just and legitimate struggle.
We place all our trust in God first of all, but also in the
honest and conscientious Turco-Muslim electorate, who believe
in our cause. The Turkish electorate of the department of
Rodopi, whose motto is 'one for all and all for one' will
express their trust in Güven on 5 November and overcome all
their adversaries with honour and respect.
..."
The applicant was convicted of an offence on the basis of the
above article, a Greek translation of which was read out at his trial
in the Rodopi Criminal Court and in the Patras Court of Appeal
(see paragraphs 9, 10 and 15 below).
In another communiqué he wrote:
"YOUNG PEOPLE! SHOULDER YOUR RESPONSIBILITIES
ON 5 NOVEMBER THE INNOCENT YOUTH WHO HAVE BEEN SUFFERING SINCE
THE DAY OF THEIR BIRTH IN WESTERN THRACE WILL AT LAST BE ABLE
TO SAY 'NO' TO THE POLITICAL PARTIES WHO ARE MAKING THEM LIVE
AN INHUMAN LIFE
YOUNG PEOPLE! UNITY IS STRENGTH! STICK TOGETHER! YOUR VOTE
IS AS PRECIOUS AS YOUR HONOUR, BE CAREFUL HOW YOU CAST IT!
THE YOUNG TURKS OF WESTERN THRACE, WHOSE SLOGAN IS 'WE WANT
RIGHTS, NOT CHARITY' ARE GOING TO ENFORCE RESPECT FOR THEIR
RIGHTS
YOUNG TURK OF WESTERN THRACE
In this community of 150 thousand Turco-Muslims of
Western Thrace the highest duty, one which will fill you with
honour and pride, falls to you. The date of the fresh
general election, 5 November, is approaching.
For 25 to 30 years you have been affected most by the pressure,
discrimination and injustice inflicted on the Turkish community
of Western Thrace by the leaders who have followed each other
at the head of this country.
You have breathed in the fumes of injustice and discrimination
since birth.
Your innocent childhood passed by in injustice. You were not
able to shout out to the world 'I am a Turkish child'.
In our world, where education and training are so highly
developed, your schooling was cut short. You did not even have
a schoolbook when ethnic-Greek children were getting a
modern education and taking advantage of the cultural and
technological developments of their time. You have the
necessary intelligence to become a doctor, a lawyer or an
engineer ... but this country which you call 'my homeland' has
shut the door of study in your face.
You have grown up and become an adult in the midst of these
injustices by the law of nature. Because no one could prevent
you growing up. Perhaps you are also now married and a father,
but you have no home for your dear wife and the children you
love. You have just completed your military service but, in
this country that you call 'my homeland', the right to buy or
build a house is denied you.
As your access to higher education was barred, you learned a
trade, although this meant putting up with the constant
annoying remarks of your 'Christian boss' [Çorbaci] down
through the years. You became a repairer of engines,
exhaust pipes or tyres ..., but you still have to fill the
pockets of your Christian boss, because you do not have the
right to open your own workshop.
When you were born you received your name during the call to
prayer; your name appears in the district council's register
as Ahmet, Mehmet ... But in your place of work your boss
insists on calling you 'Taki, Maki, Saki ...'
With the enthusiasm of youth you leap on a tractor and work in
the fields day and night. You would like to drive past in
front of your friends on this tractor, but you can't.
Because you are not even thought worthy of permission to use
the tractor. You are almost obliged to work your own land by
stealth. After working all year long and saving up a bit of
money you would like to go for a trip or to travel abroad. But
you're uneasy about going away. You are tormented by doubts.
You wonder if you'll lose your nationality when you return or
have to surrender your passport when you leave.
YOUNG PEOPLE OF WESTERN THRACE!
You young people who came into the world in the midst of all
this injustice and for whom a humiliating existence has been
mapped out, your day has come!
In the elections of 5 November, teach all those who would lock
you into this injustice an unforgettable lesson.
NOBODY DOUBTS THAT YOU WILL GIVE YOUR FULL SUPPORT TO THE
INDEPENDENT LIST and in so doing prove that you would rather
die than abandon your national and religious roots!
Here and now you must set up CAMPAIGN COMMITTEES in your
district or village and make sure that your parents and
grandparents are not deceived!
On the day of the elections, up till the time when all the
votes have been counted, make sure that all the votes are not
wasted by remaining either next to the ballot boxes or outside
the polling station. Do not forget for a single second that
your vote is as precious as your honour!
THE TURKISH COMMUNITY OF WESTERN THRACE TRUSTS YOU AND IS PROUD
OF YOU.
LONG LIVE THE TURKISH AND MUSLIM YOUTH OF WESTERN THRACE!"
9. The applicant was then accused of contravening Articles 162 and
192 of the Criminal Code (see paragraph 20 below). On 18 December 1989
the public prosecutor attached to the Rodopi Criminal Court summoned
him to appear in that court on 25 January 1990 to stand trial on the
following charges:
"[In the second half of] the month of October 1989, in the town
of Komotini,
(1) by false information and defamatory declarations about
certain candidates, [Mr Ahmet Sadik] deceived the electors in
order to induce them to change the way they intended to vote;
in particular, he wrote and circulated in the town of Komotini
and other places in the department of Rodopi a declaration in
the Turkish language ... in which he asserted that the
Muslim electors of the department of Rodopi were living every
day - that is in the period preceding the general election of
5 November 1989 - in an anarchic climate (of terror) fostered
by the candidates of the other political parties ... who were
going round the different villages of the department of Rodopi
trying to win the votes of the Muslim electors ...
(2) at the same time and in the same place he contravened
Article 192 of the Criminal Code ...; in particular he wrote
and circulated the above-mentioned declaration in which there
were frequent repetitions of the words 'Turk',
'Turkish Muslim', 'Turkish Muslim minority of Western Thrace'
and 'Turkish community', used to designate the Muslim minority
in Thrace; by describing the Muslim minority as 'Turkish' and
by calling the Muslims 'Turks' rather than 'Greeks', he
provoked and incited the citizens to sow discord among
themselves (particularly on the Muslim side) and between them
and the other citizens of Komotini, and thus disturbed the
public peace ...
Consequently, he has contravened Articles ... 162 and 192 of
the Criminal Code."
A second summons, of the same date, directed the applicant to
appear before the same court on 8 February 1990 to answer the following
charge:
"On 17 November 1989 in the town of Komotini and in other
places in the department of Rodopi he contravened Article 192
of the Criminal Code ... In particular, he published in the
newspaper Güven of 17 November 1989 a declaration signed by him
(the accused) in which he falsely alleged the existence of
discrimination against, and oppression of, the Muslims of
Thrace by the Greek administrative authorities, and of
injustices committed to their detriment. Lastly, by describing
the Muslim minority of Thrace as the 'Turkish minority' rather
than the 'Greek minority of Muslim faith', he provoked and
incited the citizens, mainly on the Muslim side, to
reciprocal discord and thus disturbed the public peace of the
citizens of Thrace.
Consequently, he has contravened Articles ... and 192 of the
Criminal Code."
B. The proceedings in the Rodopi Criminal Court
10. On 25 January 1990 Mr Ahmet Sadik and his co-defendant appeared
in the Rodopi Criminal Court. While the witnesses were being
questioned their lawyers challenged one of the court's judges on
account of the animosity he had shown towards the accused and the way
he was asking the questions. After deliberating, the court dismissed
the challenge, holding that the questions asked by the judge concerned
did not go beyond the scope of the bill of indictment and were intended
as an objective means of revealing the truth in the case under
consideration. The defence lawyers then withdrew from the case and
their clients stated that they did not want any other lawyer to be
appointed. They conducted their own defence and denied committing the
offence charged. In particular, the applicant said that his intention
in the articles in issue had only been to condemn the oppression of the
Muslim minority by the State and to draw attention to the problems
which members of that minority encountered in their dealings with the
administrative authorities. He pointed out that the term "Turkish" had
been used for a long time not only in the press but also by the
administrative and judicial authorities. Lastly, he asserted that the
presence of a crowd which had gathered outside the court was not due
to the articles in issue but to the fact that the trial was being held
and the fact that the Muslims' ethnic identity was still being denied.
11. On 26 January 1990 the court acquitted the applicant and his
co-defendant of electoral deception, but found them guilty of
disturbing the citizens' peace.
The court found that the accused, as the candidates of an
independent party in the elections of 5 November 1989, had jointly
written in the Turkish language a declaration which they had circulated
in the town of Komotini and other places in Rodopi and in which the
terms "Turk", "Turkish Muslim", "Turco-Muslim minority of
Western Thrace" and "Turkish community" repeatedly appeared. By
describing the Greek Muslims of Komotini and the department of Rodopi
as Turks rather than Greeks, they had intended, by appealing to the
feelings, minds and will of the Greek citizens of the Muslim minority,
to instil and implant in their hearts the seeds of discord, hatred and
hostility towards the Christian Greeks of Komotini and the department
of Rodopi, to provoke and incite the citizens of the two communities
to commit acts of violence and to sow discord between themselves and
thus disturb, as they had moreover succeeded in doing, the public peace
and the peaceful and harmonious co-existence that had obtained for
centuries between the citizens of the two Greek communities (the
Christian and the Muslim).
The court sentenced Mr Ahmet Sadik to eighteen months'
imprisonment, not commutable into a fine. It held that such a penalty
would not be sufficient, in view of the applicant's character and the
circumstances of the case, to dissuade him from committing other
offences. Furthermore, his refusal to express regret and the way he
had persisted during the trial in making separatist speeches showed
that he was particularly dangerous. Any appeal he might lodge should
therefore not have suspensive effect as it was probable that he would
evade justice by absconding to Turkey. Enforcement of the sentence
until such time as the appeal court had given judgment would not cause
either the applicant or his family excessive and irreparable prejudice.
12. The applicant remained in detention from 26 January to
30 March 1990. His candidacy in the elections of November 1989 was
annulled for technical reasons.
C. The incidents of 29 January 1990 in Komotini
13. On 29 January 1990 violence broke out in Komotini, in the
course of which many shops were damaged. A Muslim killed a Christian
in a hospital in the town.
14. For the Muslim minority of Western Thrace the date was
significant as the anniversary of events which had taken place
two years before, in 1988. In November 1987 the Court of Cassation had
forbidden the minority's youth and primary school teacher associations
to describe themselves as "Turkish". The Court of Cassation's judgment
brought to a close a series of actions brought in 1984 by the prefects
of Rodopi and Xanthi in order to obtain the dissolution of the
"Komotini Union of Turkish Youth", the "Turkish Primary Teachers' Union
of Western Thrace" and the "Xanthi Turkish Union". Accordingly, in
January 1988, the Muslim minority of Western Thrace decided to organise
a demonstration in front of the prefecture to express their disapproval
of the above judgment. Although the demonstration had been banned by
the police, it did in the end take place, but matters got out of hand
and violent clashes took place in the town of Komotini.
D. The proceedings in the Patras Court of Appeal
15. On 27 January 1990 the applicant appealed against the judgment
of the Rodopi Criminal Court. The case was referred to the
Patras Court of Appeal for reasons having to do with the maintenance
of order and public safety (Articles 136 (c) and 137 para. 1 (c) of the
Code of Criminal Procedure).
On 30 March 1990 the Patras Court of Appeal upheld the
Criminal Court's judgment, giving the following reasons:
"The following facts have been established by the evidence of
the witnesses for the prosecution and the defence examined
under oath during the trial before this Court and by the
documents read out and the arguments put forward by the accused
in his defence. As candidates on an independent list in the
general election of 5 November 1989 in Komotini, the accused
wrote, between 10 and 20 October 1989, a pamphlet printed in
Turkish which they distributed in the town of Komotini and
other places in the department of Rodopi and in which the terms
'Turks', 'Turkish Muslims', 'Turkish Muslim minority of
Western Thrace' and 'Turkish community' repeatedly appeared.
In this manner the accused deliberately set out to describe as
'Turks" the Greek citizens of Muslim faith, although they knew
that under the Treaty of Lausanne only a Muslim minority, not
a Turkish minority, has been recognised in the region of
Western Thrace. Nevertheless, by the above-mentioned act,
which was an appeal to the feelings, minds and will of the
Greek citizens of the Muslim minority, the accused deliberately
sought to instil and implant in their hearts the seeds of
discord, hatred and hostility towards the Christian Greeks who
lived in the same region. In this manner they succeeded in
provoking and inciting the citizens to mutual discord, a
further consequence of which was disturbance of the
public peace. All the foregoing has been corroborated by the
prosecution witnesses Athanasios Kamarakis, Stylianos Bletsas,
Syrmatoula Lantzouraki and Konstantinos Tsetlakas, who, living
in Komotini, had direct knowledge of these facts. They stated
that, because of the distribution of the pamphlet in question,
the public peace among the citizens of the town of Komotini was
seriously disturbed, so that in a short space of time acts of
violence were committed between Christians and Muslims. The
accused's assertion that what they sought to achieve through
the pamphlet in question was only to win the support of the
electors of the Greek Muslim population is not convincing
because, if that had been the case, they could have achieved
their aim by any other suitable method without referring to
Greek Muslims in the pamphlet in question as 'Turks', even
though they knew that a Turkish minority is not recognised in
Greek Thrace and that if they attempted to raise such an issue
in such a sensitive region, the peace between Christian and
Muslim Greeks would certainly be disturbed, which was indeed
what actually happened. Consequently, the accused are declared
guilty of the above-mentioned offence, as described
analytically in the operative provisions of this judgment.
Nevertheless, the Court will take into consideration the
extenuating circumstance that before committing the offence the
accused had always led blameless private, family, professional
and social lives."
Lastly, the Court of Appeal reduced Mr Ahmet Sadik's prison
sentence to fifteen months and commuted it to a fine of
1,000 drachmas (GRD) per day.
16. On 8 April 1990, after his release, the applicant was
re-elected to the Greek Parliament.
E. The proceedings in the Court of Cassation
17. On 24 October 1990 the applicant appealed on points of law.
He maintained that the charges against him were vague and that the
courts below should have dismissed the prosecution case. He also
alleged that the Patras Court of Appeal had not given sufficient
reasons for its decision, as Greek legislation required.
In particular, he argued that the Court of Appeal had not made it clear
why the use of the noun "Turk" or the adjective "Turkish" was per se
likely to create a climate of hatred or disturb public order. Lastly,
he complained that the judgment gave no specific example of events
which had actually occurred towards the end of October 1989 and which
could be said to have disturbed public peace.
18. On 15 February 1991 the Court of Cassation dismissed the appeal
on the following grounds:
"...
Article 192, which was adopted for the protection of
public order and to enable a State based on the rule of law to
deal with the kind of tension which the democratic legal order
... cannot tolerate, establishes, as do Articles 190 and 191,
the serious offence of 'disturbing the citizens' peace'. The
objective element of this offence - according to the Article
mentioned - consists in provoking or inciting the citizens,
publicly and in any manner whatsoever (whether orally or in
writing), to commit acts of violence or to sow discord among
themselves, or aversion and hate, thus disturbing the
public peace, that is to say society's confidence in peaceful
order.
The subjective element of the offence is the offender's
mens rea, which means that he must have acted knowingly and
with the intent to provoke or incite the citizens to commit
acts of violence or to sow discord among themselves, thus
disturbing the public peace.
...
In the instant case ... the Patras Court of Appeal ... found
... that the appellants, who were independent candidates in
Komotini in the general election of 5 November 1989, had
jointly written towards the end of October 1989 a declaration
in the Turkish language, which they circulated in the town of
Komotini and other places in the department of Rodopi and in
which the terms 'Turk', 'Turkish Muslim',
'Turco-Muslim minority of Western Thrace' and
'Turkish community' repeatedly appeared. In this manner the
appellants had deliberately attempted to describe as 'Turks'
the Greek Muslims of Southern Rodopi, although they knew that
the Treaty of Lausanne recognised only the existence in that
region of a Muslim (religious) minority, not a
Turkish minority. Nevertheless, the appellants, in appealing
to the feelings, minds and will of the Greek citizens of the
Muslim minority, had deliberately set out to instil and implant
in their hearts the seeds of discord, hate and hostility
towards the Christian Greeks who live in the same region. They
had thus succeeded in provoking and sowing discord among the
citizens, which disturbed the peace of the citizens of Komotini
to such an extent that, in a short space of time, acts of
violence were committed between Christians and Muslims in that
town. Moreover, they knew that there was no Turkish minority
in Western Thrace and that their conduct would disturb the
public peace between Christian and Muslim Greeks.
...
By its reasoning the Court of Appeal can be seen to have set
out in the impugned judgment the specific, detailed grounds
required by Article 93 para. 3 of the Constitution and
Article 139 of the Code of Criminal Procedure, since it gave
a full and clear account therein, without contradicting itself,
of the facts of the case as established at the trial, which
constitute the objective and subjective elements of the
above-mentioned offence ...
More particularly, there is no contradiction between the
reasons and the operative provisions ..., since provoking and
sowing discord, thus disturbing the public peace, are
sufficient to make out the objective element of the offence for
which they were sentenced. Mentioning in the reasons that acts
of violence had been committed, while not necessary to support
the operative provisions, was not however in contradiction with
those provisions, regard being had to the fact that discord is
the psychological condition for an act of violence, which is
the higher level of discord ...
Lastly, the appellants' mens rea is inherent in the commission
of the acts that constitute the offence, which show that they
acted deliberately, knowing that they were disturbing the
public peace ..."
II. Relevant domestic law
A. The Constitution
19. The following provisions of the 1975 Constitution are relevant:
Article 14 para. 1
"Every person may express and propagate his thoughts orally,
in writing and through the press in compliance with the laws
of the State."
Article 28 para. 1
"The generally acknowledged rules of international law, as well
as international Conventions as of the time they are sanctioned
by law and become operative according to the terms therein,
shall be an integral part of domestic Greek law and shall
prevail over any contrary provision of the law.
The rules of international law and of international Conventions
shall be applicable to aliens only under the condition of
reciprocity."
B. The Criminal Code
20. The relevant provisions of the Criminal Code are worded as
follows:
"Electoral deception
Article 162
It shall be an offence, punishable by up to two years'
imprisonment and a fine, to deceive an elector through
false information or defamatory declarations about an
electoral candidate, or by any other means, either in order to
prevent him from exercing his right to vote or in order to
influence his voting intentions ..."
"Disturbing the public peace
Article 189
1. It shall be an offence, punishable by up to two years'
imprisonment, to participate in a gathering of persons ...
committing acts of violence against people or property or
forcibly entering houses belonging to others, dwellings or
other buildings.
2. Incitement to commit the offence or the commission of acts
of violence shall be punished by not less than three months'
imprisonment.
3. These penalties shall be imposed if the conduct concerned
is not punished more severely pursuant to another provision."
"Disturbing the citizens' peace
Article 190
It shall be an offence, punishable by up to two years'
imprisonment, to provoke anxiety or terror among the citizens
by threatening the commission of criminal offences.
Article 191 para. 1
It shall be an offence, punishable by not less than
three months' imprisonment and a fine, to spread by any means
false information or rumours calculated to provoke anxiety or
fear among the citizens or to undermine confidence in the State
... or to perturb the country's international relations. If
the offence is repeated by way of the press, the offender shall
be punished by not less than six months' imprisonment and a
fine of not less than two hundred thousand drachmas.
Article 192
It shall be an offence, punishable by up to two years'
imprisonment, save where another provision lays down a harsher
penalty, to provoke or incite the citizens, publicly and in any
manner whatsoever, to commit acts of violence or sow discord
among themselves, thus disturbing the public peace."
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Ahmet Sadik applied to the Commission on 11 July 1991.
He alleged violations of Article 5 paras. 1, 3 and 4; Article 6
para. 1; Article 6 paras. 1, 2 and 3 taken in conjunction with
Article 14; Articles 9, 10, 11 and 14 of the Convention (art. 5-1,
art. 5-3, art. 5-4, art. 6-1, art. 14+6-1, art. 14+6-2, art. 14+6-3,
art. 9, art. 10, art. 11, art. 14) and Article 3 of Protocol No. 1
(P1-3).
22. On 8 July 1994 the Commission declared the application
(no. 18877/91) admissible in so far as it concerned the complaints
under Articles 9, 10, 11 and 14 of the Convention (art. 9, art. 10,
art. 11, art. 14), while expressing the opinion that the main issue
raised was the question whether there had been a violation of
Article 10 (art. 10), and declared the remainder of the application
inadmissible. In its report of 4 April 1995 (Article 31) (art. 31) it
expressed the unanimous opinion that there had been a violation of
Article 10 (art. 10). The full text of the Commission's opinion is
reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
23. In their memorial the Government argued in conclusion:
"1. The petition of the applicant late Ahmet Sadik based on a
complaint concerning the invoked violation of Article 10
(art. 10) is not transferable to his heirs and does not present
a general interest; and therefore should be considered and
declared inadmissible.
2. Furthermore, on a subsidiary basis, the petition should be
declared inadmissible according to Article 26 of the Convention
(art. 26), also because the national remedies have not been
exhausted, since the argument that the application of
article 192 of the Greek Penal Code in the concrete case
constituted a violation of the freedom of expression of the
applicant has not been invoked before the national courts.
3. Finally, also on a subsidiary basis, considering all the
relevant circumstances, the conviction of the late applicant
was provided by law, was pursuing a legitimate aim, was
necessary in a democratic society and proportionate; therefore
it did not constitute a violation of Article 10 of the
Convention (art. 10).
4. Also on a last subsidiary basis, if the Court would find
that Greece is in breach of Article 10 (art. 10), the
Greek Government submits that in view of Article 50 of the
Convention (art. 50) the only amount which could be claimed by
the heirs of the late applicant would be the proven real and
necessary disbursements, which they incurred during the
proceedings before the Commission and the Court."
AS TO THE LAW
I. PRELIMINARY OBSERVATION
24. The Government contested the right of the applicant's widow and
children to continue before the Court the proceedings he had
instituted.
Relying on the Commission's case-law on the question, they
submitted that the complaint relating to a violation of Article 10
(art. 10) was so closely and directly bound up with the deceased
applicant's person that his heirs could not assert any specific legal
interest which would enable them to continue the proceedings in his
stead. Moreover, the applicant's case was an isolated one which raised
no question of general interest.
25. The lawyer of the deceased applicant's heirs invoked, in
addition to his clients' pecuniary interest, their personal interest
in continuing the proceedings, if only in order to be informed whether
they were "members of the Greek minority of Muslim faith" or simply
"members of the Turkish community".
In addition, he maintained that the interest of the present
proceedings went well beyond the individual case of Mr Ahmet Sadik
since they concerned the name and cultural identity of an entire
minority. In support of that argument he referred to the very terms
of the Government's application bringing the case before the Court, in
which they had declared: "the case concerns important national issues
and also raises complex legal problems, since it affects the
Muslim minority in Western Thrace".
26. The Court notes, firstly, that the applicant was convicted by
the Greek courts of disturbing, through his writings, the public peace
and the peace of the citizens of Western Thrace. Without prejudice to
its decision on the objection relating to non-exhaustion of domestic
remedies, the Court considers that Mr Ahmet Sadik's widow and children
have a legitimate moral interest in obtaining a ruling that his
conviction infringed the right to freedom of expression which he relied
on before the Convention institutions.
Furthermore, it notes that the applicant was sentenced to
fifteen months' imprisonment, commutable to a fine of GRD 1,000 per day
of detention, which sum he paid. Like the Delegate of the Commission,
the Court considers that the applicant's heirs also have a definite
pecuniary interest under Article 50 of the Convention (art. 50).
The Court accordingly finds that Mrs Isik Ahmet and her
two children, Mr Levent Ahmet and Miss Funda Ahmet, have standing to
continue the present proceedings in the applicant's stead.
II. THE GOVERNMENT'S PRELIMINARY OBJECTION
27. The Government submitted that Mr Ahmet Sadik had not exhausted
domestic remedies, not having raised before the national courts, even
in substance, the complaint relating to a violation of Article 10
(art. 10).
They asserted that neither the applicant nor his lawyers had
alleged at any stage of the proceedings in the Rodopi Criminal Court
and the Patras Court of Appeal - even indirectly or in abstract terms -
any infringement whatsoever of the right to freedom of expression. The
only reason why, in the Court of Cassation, the applicant had asserted
his right to use the term "Turkish" to designate the Muslims of
Western Thrace had been to prove that the act he had committed was not
sufficient to make out the objective element of the offence defined in
Article 192 of the Criminal Code. In addition, the Court of Cassation
could not consider of its own motion the possibility of an infringement
of the right to freedom of expression. While it fell to that court to
review the constitutionality of a legislative provision proprio motu,
it could not - in the absence of an express application to this effect
by the parties - consider whether the provision concerned had been
applied to the facts of the case before it in a manner compatible with
the Constitution.
28. The applicant acknowledged that he had not explicitly referred
to Article 10 of the Convention (art. 10) in the Greek courts, but
asserted that in his appeal on points of law he had nevertheless laid
stress on the vagueness of the charges preferred against him and the
unclear formulation of the reasons for the Court of Appeal's judgment.
Even supposing that he had not invoked his right to freedom of
expression in substance in the Greek courts, judges were under a duty
to determine of their own motion where the dividing line between the
right to declare one's ethnic origin and the offence of inciting
disorder should be drawn. However, no judicial authority in Greece was
disposed to affirm that a member of the "Turkish minority" enjoyed such
a right. Be that as it may, the judge in a criminal case had a duty
to take into consideration of his own motion, especially when
contemplating imposing a heavy sentence on the defendant, the freedoms
guaranteed by the Constitution and the Convention, which in Greece took
precedence over legislation.
29. In its decision on the admissibility of the application the
Commission dismissed the objection on the ground that the applicant had
in substance raised before the Court of Cassation a complaint relating
to a breach of Article 10 (art. 10). In addition, the Delegate of the
Commission argued before the Court that it was sufficient, for the
purposes of exhaustion, for the applicant to have challenged the
State's actions in the domestic courts and thus afforded them the
opportunity to put right the alleged violation. Referring to the
case-law of the International Court of Justice and the generally
recognised rules of international law (Article 26 of the Convention)
(art. 26), he maintained that it was not necessary for the
domestic remedy to be based on the same ground as the
international remedy.
30. The Court does not accept that argument. It reiterates that
the supervision machinery set up by the Convention is subsidiary to the
national human rights protection systems. That principle is reflected
in the rule set forth in Article 26 (art. 26), which "dispenses States
from answering before an international body for their acts before they
have had an opportunity to put matters right through their own
legal system" (see the De Wilde, Ooms and Versyp v. Belgium judgment
of 18 June 1971, Series A no. 12, p. 29, para. 50).
In its judgment of 16 September 1996 in the case of
Akdivar and Others v. Turkey (Reports of Judgments and
Decisions 1996-IV), the Court emphasised that the application of the
rule of exhaustion of domestic remedies must make due allowance for the
fact that it is being applied in the context of machinery for the
protection of human rights that the Contracting Parties have agreed to
set up. Accordingly, it recognised that Article 26 (art. 26) must be
applied with some degree of flexibility and without excessive formalism
and that it does not require merely that applications should be made
to the appropriate domestic courts and that use should be made of
remedies designed to challenge decisions already given. It normally
requires also that the complaints intended to be made subsequently at
Strasbourg should have been made to those same courts, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see the Cardot v. France
judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).
31. The Court notes that the Convention forms an integral part of
the Greek legal system, where it takes precedence over every contrary
provision of the law (Article 28 para. 1 of the Constitution -
see paragraph 19 above). It further notes that Article 10 of the
Convention (art. 10) is directly applicable; Mr Ahmet Sadik could
therefore have relied on that provision (art. 10) in the Greek courts
and complained of a violation thereof in his case.
32. At no time, however, did the applicant rely on Article 10 of
the Convention (art. 10), or on arguments to the same or like effect
based on domestic law, in the courts dealing with his case.
In that respect there is a clear distinction between the
present case and the cases of Castells v. Spain and Guzzardi v. Italy.
Mr Castells relied in the Supreme Court and the Constitutional Court
on the relevant Article of the Spanish Constitution, which guarantees
the right to freedom of expression (see the judgment of 23 April 1992,
Series A no. 236, p. 20, para. 31), and although Mr Guzzardi did not
rely in express terms on Article 5 of the Convention (art. 5) he did
mention the Convention as a whole in the general context of
living conditions on the island where he was required to live under a
compulsory residence order (see the judgment of 6 November 1980,
Series A no. 39, p. 27, para. 72).
33. In both the Rodopi Criminal Court and the Patras Court of
Appeal the applicant, who, in his appeal on points of law, put forward
arguments which were based solely on domestic law and did not raise the
matter of freedom of expression (see paragraph 17 above), merely
defended himself against the charge of disturbing the peace, contrary
to Article 192 of the Criminal Code.
Even if the Greek courts were able, or even obliged, to examine
the case of their own motion under the Convention, this cannot have
dispensed the applicant from relying on the Convention in those courts
or from advancing arguments to the same or like effect before them,
thus drawing their attention to the problem he intended to submit
subsequently, if need be, to the institutions responsible for
European supervision (see the Van Oosterwijck v. Belgium judgment of
6 November 1980, Series A no. 40, p. 19, para. 39). That applies
where, as here, a charge of disturbing the peace may be challenged -
and indeed in the present case was challenged by Mr Ahmet Sadik
(see paragraphs 10, 11, 15, 17 and 18 above) - on the basis of
arguments which do not raise the matter of freedom of expression.
34. Accordingly, domestic remedies were not exhausted in the
instant case.
FOR THESE REASONS, THE COURT
1. Holds unanimously that the applicant's heirs have standing to
continue the proceedings in the present case in his stead;
2. Holds by six votes to three that as domestic remedies have not
been exhausted it cannot consider the merits of the case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 15 November 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Valticos;
(b) partly dissenting opinion of Mr Martens, joined by
Mr Foighel;
(c) partly dissenting opinion of Mr Morenilla.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE VALTICOS
(Translation)
I consider it needful to sound a warning concerning the scope
of the exhaustion-of-domestic-remedies principle, which, under the
terms of Article 26 of the Convention (art. 26), must be construed
"according to the generally recognised rules of international law".
That means that the condition concerned cannot be minimised as is
sometimes envisaged.
Obviously, it has often been pointed out that the Court's
case-law has evolved considerably since the Convention came into force.
In the already long period which has elapsed since the Court
was set up, ideas and needs in European countries have evolved - indeed
in many ways have undergone profound changes - and the Court had a duty
to reflect that intellectual and moral evolution, as far as possible.
That was all the more necessary - and possible - because the
substantive provisions of the Convention are often - but not always -
drafted in a general way which permits such evolution, sometimes even
to a radical degree. There are numerous examples of this and to dwell
on the point would be to push against a half-open door.
But there is one important distinction to be made. While this
evolution is normal - subject to the necessary precautions being taken
- with regard to the Convention's substantive provisions, it can only
be exceptional and limited with regard to the procedural provisions
such as the fundamental rule of international law that domestic
remedies must be exhausted. The Court has already made this rule more
flexible by not requiring applicants to invoke an actual provision of
the Convention in the domestic courts, only its substance, before a
case can validly be referred to the Court. To seek to abolish this
condition, or reduce it almost to nothing, with a view to a more
complete protection of human rights, would certainly be prompted by a
very laudable concern for justice but a very cavalier approach to the
rules of international law.
I therefore wish to emphasise the limits it would be dangerous
to cross in this respect. The Court's present judgment respects those
limits.
PARTLY DISSENTING OPINION OF JUDGE MARTENS,
JOINED BY JUDGE FOIGHEL
I. INTRODUCTION
1. One of the essential arguments against the Court's doctrine
that it has jurisdiction to examine afresh preliminary objections
already rejected by the Commission is that this doctrine has rather
unpalatable effects: it makes it possible, after long years of
Strasbourg proceedings, for very important issues to remain
undecided (1).
_______________
1. See paragraph 4.2 of my dissenting opinion in the case of Brozicek
v. Italy of 19 December 1989 (Series A no. 167, pp. 23 et seq.). My
opposition to this doctrine - which has gradually won some support
within the Court - was spurned in the Court's judgment of 25 March 1992
in the case of B. v. France (Series A no. 232-C). The present case has
again confirmed my conviction that the doctrine is essentially wrong.
_______________
The present case well illustrates that point. It concerns the
extent of the rights of ethnic minorities in a democratic society as
well as the confines of the right to freedom of expression of
campaigning politicians. Thus, the issues at stake were of
considerable legal importance for the community of the
Council of Europe at large. They were, moreover, highly emotional
questions for the applicant and his fellow-members of the minority
concerned. The Strasbourg proceedings on those issues started in
July 1991. Since then the applicant himself has died and now, more
than five years after their commencement (and nearly two years after
the Commission's report in their favour) the European Court of
Human Rights drily tells his widow and the children that those issues
will not be decided for no other reason than that the applicant's
lawyer in the domestic proceedings did not know his job.
2. I have voted for dismissal of the Government's preliminary
objection.
My primary argument for so voting was that I maintain, as a
matter of principle, that the Court should leave it to the Commission
to determine whether such pleas are founded or not. In the alternative
I have done so for the reasons explained in paragraphs 4-14 below.
3. Had there been a majority for dismissal of the preliminary
objection I would have voted for finding a violation. I think the case
is of such importance that in paragraphs 16-23 below I will also
briefly outline my arguments therefor.
II. EXHAUSTION OF DOMESTIC REMEDIES
A. General considerations
4. In paragraphs 65-69 of its judgment of 16 September 1996 in the
case of Akdivar and Others v. Turkey (Reports of Judgments and
Decisions for 1996-IV, pp. 1210-11) the Court has summarised its
general doctrine on the rule of exhaustion of domestic remedies
referred to in Article 26 of the Convention (art. 26). Not only
summarised, but also refined. Refined in the sense that - in line with
international tendencies in this area (2) - it has stressed more
explicitly than in previous judgments the importance of making
"due allowance" for the fact that the rule is being applied "in the
context of machinery for the protection of human rights". Notably
paragraph 68 in fine of the Akdivar and Others judgment shows that the
Court has now essentially opted for what my friend Judge Morenilla has
aptly called "a flexible pro victima interpretation of this Article
(art. 26)" (3).
_______________
2. See Jost Delbrück in: Jekewitz et al., Des Menschen Recht
zwischen Freiheit und Verantwortung (Festschrift Josef Partsch),
pp. 225 et seq..
3. See his dissenting opinion in the case of Cardot v. France
(judgment of 19 March 1991, Series A no. 200, p. 24).
_______________
5. Indeed, one wonders whether under present-day conditions the
rule still quite fits into the system for the protection of
human rights as it has developed during the last decades. After all,
the rule dates back to the second half of the nineteenth century, when
the individual was not yet recognised as a subject of
international law, and its classical function was, then, to protect
State sovereignty against excessive encroachment by State-to-State
claims on behalf of private individuals whose rights had allegedly been
violated (4).
_______________
4. See the contribution of Delbrück referred to in note 2; see also
Gurdip Singh in E.S. Venkataramiah (Editor), Human Rights in the
Changing World (1988), p. 261.
_______________
It would have been consistent with the essential changes which
have occurred since then in the legal status of the individual under
international law, especially where international law allows a victim
of an alleged violation of human rights to seek redress on his own
behalf, if in such cases the rule had been abandoned. Yet that has not
been done.
It would, therefore, seem to me that the rule is, essentially,
a relic of the original reluctance of certain States to set up an
international court with the task of ensuring the fulfilment of their
engagements under the Convention. In this context I refer to the
Court's analysis in its De Wilde, Ooms and Versyp v. Belgium
judgment (5). Present-day conditions, however, have changed also in
this respect: all member States have long since accepted the Court's
jurisdiction, and - it may be added - con amore, even if, as is only
natural, they sometimes resent its decisions. This salutary evolution
has greatly enhanced the protection of human rights in Europe.
_______________
5. See paragraph 50 of its judgment of 18 June 1971 (Series A no. 12,
p. 29) where it said that "the rule of exhaustion of domestic remedies
delimits the area within which the Contracting States have agreed to
answer for wrongs alleged against them before the organs of the
Convention" and added that "the Court has to ensure the observance of
the provisions relating thereto just as of the individual rights and
freedoms guaranteed by the Convention and its Protocols", thereby
suggesting that the defence plea was as important to States as
fundamental rights to citizens. In paragraph 3.4 of my dissenting
opinion referred to in note 1 I have already critically commented on
this passage.
_______________
Against this background I find it open to doubt whether the
rule of exhaustion of domestic remedies still quite fits into the
system because the rule thwarts the Court's power to do justice in
those cases of violation of human rights where the victim has not
enjoyed proper legal assistance in the domestic sphere.
6. Admittedly, the Court has sought to minimise this wretched
effect of the rule by accepting that its requirements are met where the
complaint raised before the Convention organs has been pleaded before
the national courts "at least in substance".
That is, however, but a poor palliative. Firstly, because the
notion "in substance" is so vague as to leave ample room for
differences of opinion, as is illustrated by the Cardot case as well
as by the present case. Secondly, because it does not help in those
cases where even the most considerate interpretation of the pleadings
before the domestic courts does not allow the conclusion that there the
applicant has raised "at least in substance" the complaints he now
raises before the Convention organs. Yet, the Court has adamantly
refused to go further. It notably has refused to accept that the
requirements of the rule must be deemed to be met if: (a) applications
have been made to the appropriate domestic courts and use has been made
of remedies designed to challenge decisions already given and (b) those
courts were able, or even obliged, to examine the case of their own
motion under the Convention (6).
_______________
6. See the Cardot v. France judgment of 19 March 1991, Series A
no. 200, p. 18, para. 34, in combination with its Van Oosterwijck
v. Belgium judgment of 6 November 1980, p. 19, para. 39. The
Commission takes the same view: see its case-law as summarised by
Amerasinghe, Local Remedies in International Law
(Grotius Publications Limited, Cambridge, 1990), p. 178. However, when
the national court has considered the case ex officio, the Commission
takes the view that the requirements of the rule are met (see its
decision of 10 May 1979, application no. 8130/78, Decisions and
Reports 16, p. 120).
_______________
7. In the Court's previous judgments arguments for this unyielding
refusal are conspicuously lacking and even in the present judgment the
majority, although challenged, has found nothing better than to repeat
the pure petitio principii of paragraph 39 of the nearly
20-year-old Van Oosterwijck judgment cited above (7).
_______________
7. See paragraph 33 of the Court's judgment.
_______________
For my part, I have never been able to imagine sound reasons
for this Van Oosterwijck doctrine (8). As I have already indicated in
my dissenting opinion in the Cardot case: if under domestic law courts
are bound to apply the Convention ex officio, the applicant by taking
his case to the appropriate courts and availing himself of all possible
remedies in principle provides those courts with the opportunity which
the domestic remedies rule is designed to afford, namely
"the opportunity of preventing or putting right the violations
alleged" (9).
_______________
8. Nor did I find such reasons in the sparse observations of learned
authors. Flauss, who in RUDH 1991, pp. 529 et seq., has written a
paper "La condition de l'épuisement des griefs au sens de l'article 26
CEDH: les enseignements de l'arrêt Cardot" (art. 26), merely contends
that the interpretation of the rule should not be too favourable to
individuals, but utterly fails to explain why an interpretation which
prevents a (possible) victim of a violation of fundamental rights being
denied justice on no other ground than that he or she is also a victim
of his or her domestic counsel's incompetence, is too favourable to the
individual. I would rather say that it is too favourable to the State!
Florence Benoit-Rohmer in a note (Dalloz 1993, Jur. 563) on the Court's
De Geouffre de la Pradelle v. France judgment of 16 December 1992
merely claims that another interpretation than that of the Court
"aboutirait à vider de sa signification cette condition essentielle de
recevabilité".
9. Series A no. 200, p. 22, para. 2.
_______________
8. Under these circumstances it is scarcely surprising that
learned authors have time and again suggested that the real grounds for
such decisions as the Van Oosterwijck and the Cardot judgments are to
be sought elsewhere, namely in the Court's wish to avoid a decision on
the merits (10). Similar comments may be expected in the present case.
I find that rather unfortunate and an extra argument against the
Court's rigid attitude in these matters.
_______________
10. See, for example, Flauss in his article referred to in note 8,
RUDH 1991, pp. 535 et seq.
_______________
9. For my part I take the view that if under domestic law courts
are bound or able to apply the Convention ex officio, the applicant by
taking his case to the appropriate courts and availing himself of all
possible remedies has in principle met the requirements of Article 26
(art. 26). I think that this squares with the rationale of the
domestic remedies rule and apart from that I can see various other good
reasons for accepting this view, whilst the only argument that I can
see against (see paragraph 13 below) can be taken care of otherwise
than by following the impugned doctrine.
10. The reasons for the first proposition - which concerns the case
where under national law domestic courts are bound to apply the
Convention ex officio - have been stated already in paragraph 7 above.
11. As to the second proposition - which concerns the case where
under national law domestic courts are able (but not obliged) to apply
the Convention ex officio - I agree with Ganshof van der Meersch (11),
who argued - as long ago as 1966 - that the system of the Convention
implied that those courts were then under an obligation to apply the
Convention ex officio.
_______________
11. See W.J. Ganshof van der Meersch, Organisations européennes I
(Editions Sirey, Paris, 1966), pp. 374-75.
_______________
I recall, firstly, that the Court has consistently stressed -
and in paragraph 30 of the present judgment again stresses - the
subsidiary character of the machinery established by the Convention:
the task of securing the enjoyment of the rights and freedoms it
enshrines falls in the first place to the Contracting States. Under
the fundamental principle of rule of law which Article 6 of the
Convention (art. 6) is intended to enshrine it is self-evident that the
domestic courts (12) of these States are - to the extent of their
powers - bound to see to it that this obligation to safeguard
human rights is honoured. This is confirmed by the Court's repeatedly
drawing attention to the importance of incorporating the Convention
into the domestic legal order and of treating its rules as directly
applicable: as the Court said in paragraph 66 of its Eckle v. Germany
judgment of 15 July 1982 (Series A no. 51, p. 31), in States where
these conditions are fulfilled the subsidiary character of the
conventional machinery of protection is "all the more pronounced",
undoubtedly since in such States domestic courts are in the best
position to see to it that fundamental rights are secured.
_______________
12. See instead of all other possible references the Court's
Klass and Others v. Germany judgment of 6 September 1978, Series A
no. 28, pp. 25-26, para. 55.
_______________
I recall, secondly, that the Court has recently, in
paragraph 93 of its judgment of 23 March 1995 (preliminary objections)
in the case of Loizidou v. Turkey (Series A no. 310, p. 31) stressed
"the special character of the Convention as an instrument of
European public order (ordre public)" (13).
_______________
13. See also paragraph 75 of that judgment, where the Court even
described the Convention as "a constitutional instrument of
European public order (ordre public)".
_______________
It follows that under the Convention the same rule applies as
has been accepted by the Court of Justice of the European Communities
with respect to Community law (14): in those cases where
domestic courts, under their national law, are in a position to apply
the Convention ex officio, those courts must do so under the
Convention. That is an obvious demand of the effectiveness both of the
Convention as a constitutional instrument of European public order
(ordre public) and of the "national human right systems".
_______________
14. See its judgment of 14 December 1995 in the joint cases C-430/93
and C-431/93, ECR 1995-I, pp. 4705 et seq.
_______________
12. I do not suggest that where national courts have neglected
their duties in this respect, a complaint under Article 25 (art. 25)
should lead to the finding of a violation. What I do suggest, however,
is that in a case where an applicant has taken his case to the
appropriate domestic courts and where, under domestic law, those courts
were - either under their national law or, as indicated in
paragraph 11 above, under the Convention - bound to apply the
Convention even when the applicant failed to invoke it, in the
Strasbourg proceedings the respondent State should not be permitted to
rely on the non-exhaustion of domestic remedies rule. Admittedly, in
such cases the applicant's lawyer was in default, but so were the
domestic courts and under a true pro victima interpretation of
Article 26 (art. 26) the latter default should prevail: I do not see
why the principle of nemo auditur propriam turpitudinem allegans should
not apply to States.
13. As I said before, I can see but one objection against this
liberal, pro victima interpretation of the rule of non-exhaustion in
the context of the protection of human rights. This interpretation
might allow an applicant to raise a complaint before the Convention
organs which he deliberately omitted to mention before the
domestic courts of the respondent State in order to be able to
demonstrate in Strasbourg how badly human rights are protected in that
State.
One can, of course, not exclude that possibility, especially
in politically sensitive areas. However, one may safely assume that,
as a rule, not relying on the Convention will not be the result of
dolus malus but of sheer ignorance on the part of the applicant and of
reprehensible incompetence on the part of his domestic lawyers.
Moreover, applicants too must be presumed to be acting in good faith.
The onus of alleging and establishing that the applicant deliberately
refrained from relying on the Convention should therefore be on the
State invoking the rule in a case where (a) the applicant has taken his
case to the appropriate domestic courts, (b) the applicant before those
courts has not even in substance relied on the Convention and (c) those
courts were, nevertheless, bound to apply the Convention. Unless that
onus is discharged in such cases the plea of non-exhaustion should be
dismissed.
14. There is one more remark to be made on the onus in the present
context. In my opinion the distribution of proof is such that it is
for the applicant to satisfy the Court that, in principle, the
domestic courts were in a position to apply the Convention ex officio,
whilst -once this burden of proof has been discharged - it is incumbent
on the Government which nevertheless maintain their objection to
establish that, due to the special circumstances obtaining in the
concrete case, the domestic courts were not in a position to base their
judgment on such ex officio application of the Convention.
B. Application to the present case
15. Applying the above general considerations to the case of
Ahmet Sadik I note in the first place that the Convention forms an
integral part of the Greek legal system, where it takes precedence over
every contrary provision of the law (15) and that, moreover,
Article 10 (art. 10) is directly applicable under Greek law.
Consequently, my starting-point is that the Greek Supreme Court, when
dealing with the applicant's appeal against his conviction by the
Patras Court of Appeal, in principle could and should have applied
Article 10 (art. 10) - as interpreted in the case-law of the
European Court of Human Rights - ex officio (see paragraph 11 above).
_______________
15. See paragraph 31 of the Court's judgment. See also: Alkema,
Bellekom, Drzemczewski and Schokkenbroek (Editors), The Domestic
Implementation of the European Convention on Human Rights in Eastern
and Western Europe, Proceedings of the seminar held in Leiden,
24-26 October 1991, pp. 26 et seq.
_______________
I note in the second place that, even supposing that the
Greek Supreme Court in criminal cases lacks the power to quash of its
own motion, this does not necessarily imply that it cannot ex officio
supplement legal arguments for grievances put forward by the appellant.
In this context I recall that the grievances raised by the applicant
were very broad: he maintained, inter alia, that the prosecution case
should have been dismissed and that the Patras Court of Appeal had not
given sufficient reasons for its decision (16). It follows from the
above that in assessing whether these grievances justified quashing the
Court of Appeal's judgment the Supreme Court should not have restricted
itself to merely examining the arguments, mainly based on domestic law
and practice, put forward by the applicant's lawyer in support of those
grievances, but should have examined moreover whether these grievances
might justify quashing when based on the argument that taking into
account the applicant's rights under Article 10 of the Convention
(art. 10) the prosecution case should have been dismissed or the
Patras Court of Appeal should have given better reasons for its
decision. Thus supplementing the arguments would have meant, in the
light of the case-law of the European Court of Human Rights, that the
Greek Supreme Court should also have assessed ex officio whether the
applicant's conviction and sentence were proportionate. It should have
scrutinised the lower courts' judgments in the light of Article 10
(art. 10), that is: should have critically examined whether their
findings of fact and their reasoning were sufficiently solid to justify
convincingly the interference with the applicant's freedom of
expression.
_______________
16. See paragraph 17 of the Court's judgment.
_______________
I appreciate that the Greek Supreme Court has competence to
deal with questions of law only, but I am not satisfied that - as the
Government have suggested - the controlling and balancing exercise
involved exceeds the powers of a supreme court having competence with
regard to questions of law only. Having now served for two decades as
a member of such a court myself, I feel confident to say that both that
scrutiny and that balancing exercise are, essentially, a strictly legal
assessment of the facts established by the lower courts. Thus, the
Government have failed to prove that the Greek Supreme Court could not
do what it should have done (see paragraph 14 above in fine).
In sum, the applicant's appeal provided the Supreme Court with
the opportunity required under Article 26 of the Convention (art. 26)
of putting right a possible violation of Article 10 (art. 10). The
Greek Government's exception therefore fails.
III. THE MERITS
16. It is obvious that the applicant's conviction and sentence
constituted an interference with his rights under Article 10 para. 1
of the Convention (art. 10-1) and that this interference was justified
under paragraph 2 (art. 10-2) to the extent that it met the requirement
implied in the words "prescribed by law" as well as that of serving a
legitimate aim within the meaning of this paragraph (art. 10-2). The
only question to be answered is, therefore, whether the applicant's
conviction and sentence were proportionate, whether they were
"necessary in a democratic society".
17. There is no doubt that use of speech "directed to inciting or
producing imminent lawless action" and "likely to incite or produce
such action" may be proscribed. The Greek courts held that the
applicant had deliberately used such speech in a pamphlet of
October 1989 and therefore convicted him (17). It is of importance to
note that this conviction was exclusively based on the applicant's
repeatedly referring to the Muslim minority in Western Thrace as
"Turkish": the remainder of the contents of the pamphlet was not taken
into consideration. Thus, what is in issue is only whether, in the
relevant circumstances of the case, the mere fact of repeatedly
referring to the Muslim minority as "Turkish" justified the applicant's
conviction and sentence.
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17. See paragraphs 10 and 15 of the Court's judgment. The
Patras Court of Appeal held, inter alia, that "the accused deliberately
sought to instil and implant (...) the seeds of discord, hatred and
hostility towards the Christian Greeks who lived in the same region".
_______________
18. It is a significant feature of the present case that the
impugned terminology was used in the context of a political debate by
a politician campaigning for election. Moreover, and above all, it was
used by a politician belonging to a specific minority who sought to win
votes by stressing his leadership of that minority and by proclaiming
his conviction that this minority was to be characterised not only by
its religion but also by its ethnic origin, that is by its being
Turkish.
19. When criminal provisions purporting to prevent disturbance of
public peace are relied on against a politician who is not only an
opponent and a critic of the Government but also a member of a
minority, the European Court of Human Rights should apply its
highest standards of scrutiny in order to ascertain whether these
provisions have been abused, as they easily may be and often are.
There is all the more reason for extreme vigilance because the
criticism concerned the Government's attitude towards the minority in
question and more especially their policy of denying that the minority
is not only a religious but also an ethnic one.
In such cases there is no room for relying on the judgments of
the national courts nor for a margin of appreciation.
20. Against this background the decisive question is whether the
Government have convincingly established, firstly, that the mere fact
that the leader of a minority, in a political pamphlet which was
evidently exclusively meant for that minority, repeatedly designated
that minority as "Turkish" was indeed provocative of discord between
majority and minority and of acts of violence between the two groups,
and, secondly, that this use of the impugned designation was
attributable to seditious intention.
21. I have not been satisfied that this question may be answered
in the affirmative.
The picture which arises both from some of the statements of
the witnesses for the prosecution and from the comments in the
Government's memorial - which, incidentally, go much further than those
statements - is one of a long-standing tension between majority and
minority, a tension for which presumably both sides, but certainly also
the Greek authorities bear responsibility. It has not even been made
plausible, let alone convincingly established that this tension
exclusively or mainly resulted from the mere use of the impugned
designation. There is little or no evidence for the Government's
thesis on the long-range policy of secession which they see behind the
impugned use of the designation "Turkish". Nor is there a scrap of
evidence for the assertion that there is a direct or even an indirect
causal link between the impugned terminology in the pamphlet of
October 1989 and the violence and disorder of 29 January 1990. If the
latter incidents are at all attributable to a reaction by the minority
to earlier events (18) it would be more plausible to link them to the
petty and unwise endeavours of the authorities to suppress the
self-designation "Turkish".
_______________
18. In its report referred to in paragraph 4 of the Court's judgment
Helsinki Watch suggests that the incidents were rather the work of the
majority!
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22. In sum, I have not been convinced that the applicant's
conviction and sentence were a justifiable response to truly
reprehensible use of seditious language. It follows that neither have
I been convinced that the applicant's conviction and sentence were
necessary in a democratic society.
23. For these reasons I find that there has been a violation.
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
(Translation)
With regret, I part company with the majority as regards its
conclusion that the Court cannot deal with the merits of the
applicant's complaints on account of his failure to exhaust domestic
remedies. I refer once more to my dissenting opinion annexed to the
Cardot v. France judgment of 19 March 1991 (Series A no. 200, p. 23),
which the majority cite in paragraph 30 in fine, where I set out my
reasons for opposing a fresh examination by the Court of a plea of
inadmissibility that had already been submitted to the Commission and
dismissed in the Commission's decision on the admissibility of the
application in accordance with Article 27 para. 3 of the Convention
(art. 27-3) (paragraph 29 of the judgment).
I consider too that in the present case Mr Ahmet Sadik invoked
his right to freedom of expression in substance in the
Greek criminal courts on account of the very nature of the offence of
disturbing the public peace that he was accused of and for which he was
sentenced to eighteen months' imprisonment, in particular for
contravening Article 192 of the Criminal Code through the communiqués
he had published during the elections as a candidate of the
Güven political party representing part of the Muslim population of
Western Thrace.
In these accusations and in his conviction the question of the
freedom of expression of the candidates for election to the
Greek Parliament, even if it was not expressly raised, constituted the
substance of the impugned criminal offences and the proceedings brought
in the Greek criminal courts which were capable of remedying the
applicant's complaints. Article 27 of the Convention (art. 27)
requires a flexible interpretation without excessive regard for matters
of form (see the Guzzardi v. Italy judgment of 6 November 1980,
Series A no. 39, p. 26, para. 72), a "pro victima" approach in favour
of admissibility in order to allow the Convention institutions to
consider the alleged complaints.
