CASE OF GRIGORIADES v. GREECE
Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;N. Valticos;R. Pekkanen
10. The applicant was a conscripted probationary reserve officer holding the rank of second lieutenant. 11. In the course of his military service, the applicant claimed to have discovered a number of abuses committed against conscripts and came into conflict with his superiors as a result. Criminal and disciplinary proceedings were instituted against him. The former ended with his acquittal. However, a disciplinary penalty was imposed on him, as a result of which he had to serve additional time in the army. 12. On 30 April 1989 the applicant was granted twenty-four hours’ leave. He failed to return to his unit after its expiry. He was declared a deserter on 6 May 1989 and criminal charges were brought against him. 13. On 10 May 1989 the applicant sent a letter to his unit’s commanding officer through a taxi driver. 14. The letter read as follows: “PERSONAL STATEMENT After two whole years of military service as reserve officer cadet, I am obliged to inform you that I object to the prolongation of my military service following a penalty imposed on me for defending soldiers’ rights. Judging from my experience to this date, I think that it was imposed as part of a general approach intended to suppress both freedom of personality and the vindication of constitutional rights and personal freedom. Apart from the personal cost, I generally consider that imposing a penalty on young soldiers is inadmissible and unconstitutional, all the more so when such penalty is related to the struggle of young people for respect for the ideological – social human rights of people and [their struggle] to defend their personality against the humiliations of the military apparatus. Having maintained for twenty-four months a fighting stance and a conscious position on that subject, I reserve the right, which is also a duty, to establish social justice and peace, now more than ever and, being fully aware of my actions which are imperatively dictated to me in the interests of society, hereby to DENOUNCE: That the army is an apparatus opposed to man and society and, by its nature, contrary to peace. I am now absolutely certain that the process of military service is responsible for crimes and aggressiveness in society since it has created a psychology of violence, overcoming in this manner all moral and psychological resistance to violence. The army remains a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence, through a hierarchy of fear guided by an illiberal and oppressing set of Standing Orders (No. 20-1), records of political beliefs, etc. The truth is that the living conditions in the army are unacceptable to the point of being destructive and any healthy form of resistance and any effort towards dialogue are persecuted and brought defenceless before the military justice, a dangerous institution that should be abolished. All this happens despite the electoral announcements of the Ministry of National Defence concerning respect for the personality of the soldiers; in reality, the Ministry participates in and encourages such oppressive processes. By this means of protest, I and all young people who feel a deep sense of injustice because their life has been reduced to tatters, FIGHT: To stop all forms of persecution of those who have participated in processes that promote social justice, peace and the right to have an opinion on issues that concern our lives; for the Ministry to have the political will to control in a meaningful manner the military power and to prosecute those who are really responsible for this authoritarianism, instead of systematically covering for them; for the State to establish once and for all respect for the initiatives and social choices of young people, by eliminating all penalties for the promotion of such ideals. It should not content itself with “socialist vocabulary” and then follow the practice of extermination; to declare that the elimination of these authoritarian institutions is a matter of a multi-faceted and long struggle at a personal, political and social level; to put an end to discrimination, favouritism and dependency, all of these being methods used by corrupt organs. Thus, having gone through this experience, I have developed a free conscience which prevents me from taking part in and being an accomplice to this criminal process, both in its operation and in its structure, and refuse from now on to wear my uniform in these conditions. If I were to wear it, I feel that I would find myself in a crisis of conscience, contrary to my nature and beliefs as a man brought up with liberal ideas. We, the young generation, will resist any attempt to be burdened with weaknesses and become vehicles of the military establishment. This is why my stance cannot be lawfully considered to be desertion or insubordination, since it stems from fundamental human rights and is in conformity with the provisions of the Greek Constitution. I consider that I remain a citizen and a free man who sought to remain true to his conscience and the free will flowing from it. I also consider that my stance and the voicing of my protest against this humiliation are the most genuine expression of solidarity with and support for conscientious objectors because I firmly believe that this is how the struggle for social liberation and peace is carried on.” 15. A fellow reserve officer testified before the Ioannina Permanent Army Tribunal (see paragraph 18 below) that the applicant gave him a copy of the letter on 10 May 1989. It has not been alleged that any further copies were circulated. 16. Taking the view that the content of the letter constituted an insult to the armed forces, the commanding officer instituted further criminal proceedings against the applicant under Article 74 of the Military Criminal Code (see paragraph 26 below). 17. On 12 May 1989 the applicant appeared before the investigating officer, a member of the army judicial corps, who remanded him in custody on a charge of desertion. 18. The applicant was tried on 27 June 1989 by the Permanent Army Tribunal of Ioannina on charges of desertion and insulting the army. At the outset of the trial the defence challenged the constitutionality of the second charge on the ground that the relevant criminal provision was not lex certa and that the expression of criticism could not amount to an insult. That preliminary objection was dismissed. 19. At the close of the hearing the president of the court formulated a series of questions which the members of the court had to address before deciding on the applicant’s guilt. The questions relating to the insult charge were the following: “(a) Did the accused commit the offence of insulting the Greek army when, on 10 May 1989, while a reserve officer on probation, he sent a two-page typed personal statement to the commanding officer of the X unit, which came to the latter’s knowledge on the same day and which contained, inter alia, the following expressions contemptuous of, and disparaging, the authority of the army: ‘... [T]he army is an apparatus opposed to man and society ... [t]he army remains a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence, through a hierarchy of fear guided by an illiberal and oppressive set of Standing Orders (No. 20-1), records of political beliefs, etc. ...’. In so doing, did he wilfully insult the Greek army as a constitutionally entrenched institution of the Nation? (b) ... [did the applicant act] in the mistaken but bona fide belief that he was engaging in permissible criticism, in accordance with Article 14 of the Constitution currently in force?” 20. In a judgment delivered the same day the court, by a unanimous vote, answered the first question in the affirmative and the second in the negative. The applicant was found guilty of desertion and insulting the army. Taking into account the fact that the applicant was a first-offender, the court sentenced him to imprisonment for one year and eight months for the first offence and three months for the second offence, and ordered him to serve a global sentence of one year and ten months. 21. The applicant lodged an appeal with the Military Appeal Court which was heard on 5 September 1989. In a judgment delivered the same day the court quashed the applicant’s conviction for desertion. However, it upheld, by three votes to two, his conviction for insulting the army after dismissing his objection that the relevant provision was contrary to the Constitution and, taking into account that the applicant had no previous convictions, sentenced him to three months’ imprisonment. The applicant was immediately released, the time he had spent in detention on remand being credited against his sentence. 22. On 20 September 1989 the applicant lodged an appeal on points of law to the Court of Cassation (Arios Pagos), on the ground that Article 74 of the Military Criminal Code had not been correctly construed and applied. He argued, inter alia, that general criticism of the armed forces could not be considered an insult. He claimed in addition that the provision in question violated the Constitution because of its vagueness and could not be considered lex certa, and also that it imposed unwarranted limitations on the right to freedom of expression. 23. The applicant’s appeal on points of law was heard by a Chamber of the Court of Cassation on 12 March 1991. On 26 June 1991 the Chamber of the Court of Cassation decided to submit the case to the plenary court, having considered, by three votes to two, that Article 74 of the Military Criminal Code did not violate the Constitution and that it had been correctly applied in the applicant’s case. 24. In a judgment delivered on 22 September 1993 the plenary Court of Cassation considered that Article 74 of the Code sufficiently circumscribed the elements of the offence, namely the insult and the intention of the culprit. Elaborating on this point, the court held that “[t]he concept of ‘insult’ includes every show of contempt damaging the esteem, and respect for, and the reputation of, the protected value. To qualify as an insult, such expression must convey contempt, taunt and denigration; it is not sufficient merely to call into question the protected value. This value is the armed forces and, more particularly, not the army or air force and the navy individually, but the armed forces in their entirety as an idea and an institution entrusted with defending the freedom and independence of the country and the necessary training of Greeks who are able to bear arms. Article 74 of the Military Criminal Code does not specify the nature of the insult nor the manner and means by which the insult is made, as it was not the intention of the legislature to make insulting behaviour of a particular kind, or committed in a particular manner, or by a particular means, a criminal offence. Any insult of the army by a member of the armed forces constitutes a criminal offence. This does not create any uncertainty as to the elements of the offence. Any further specification would have limited the scope of the criminal prohibition, which the legislature did not intend. Article 14 of the Constitution, which protects freedom of opinion, does not in any way preclude the legislature from making every instance of insulting the army by a member of the armed forces a criminal offence. The protection of Article 14 is subject to limitations provided for by law ...” For these reasons, the plenary Court of Cassation upheld the applicant’s conviction. 25. Article 14 § 1 of the Greek Constitution provides: “Every person may express and propagate his thoughts orally, in writing and through the press in compliance with the laws of the State.” 26. Article 74 of the Military Criminal Code provides: “Insults to the flag or the armed forces A member of the armed forces who insults the flag, the armed forces or an emblem of their command shall be punished by a term of imprisonment of at least six months. If he is an officer, he shall also be stripped of his rank.” 27. A corresponding civilian offence is defined by Article 181 of the Criminal Code, which provides as follows: “Insults to authorities and to symbols 1. Any person shall be punished with imprisonment for up to two years who: a) publicly insults the Prime Minister of the country, the Government, Parliament, the Speaker of Parliament, the leaders of the political parties recognised by the Rules of Parliament and the judicial authorities; b) insults or, as a display of hatred or contempt, damages or disfigures an emblem or symbol of State sovereignty or the President of the Republic. 2. Criticism in itself shall not constitute an insult of an authority.” 28. A new Military Criminal Code entered into force in 1995. Article 58 of that Code provides: “A member of the armed forces who, by speech, actions or any other means whatsoever, publicly expresses contempt for the flag, the armed forces or a symbol of their authority, shall be punished by a term of imprisonment of at least three months.”