CASE OF SERIF v. GREECE
Violation of Art. 9;Not necessary to examine Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award
Marc Fischbach
7. The applicant is a Greek citizen, born in 1951. He is a theological school graduate and resides in Komotini. 8. In 1985 one of the two Muslim religious leaders of Thrace, the Mufti of Rodopi, died. The State appointed a mufti ad interim. When he resigned, a second mufti ad interim, Mr M.T., was appointed. On 6 April 1990 the President of the Republic confirmed M.T. in the post of Mufti of Rodopi. 9. In December 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Rodopi, as the law then in force provided. They also requested that elections be organised by the State for the post of the other Muslim religious leader of Thrace, the Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise elections themselves at the mosques on Friday 28 December 1990, after prayers. 10. On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a legislative decree by which the manner of selection of the muftis was changed. 11. On 28 December 1990 the applicant was elected Mufti of Rodopi by those attending Friday prayers at the mosques. Together with other Muslims, he challenged the lawfulness of M.T.’s appointment before the Supreme Administrative Court. These proceedings are still pending. 12. On 4 February 1991 Parliament enacted Law no. 1920, thereby retroactively validating the legislative decree of 24 December 1990. 13. The Rodopi public prosecutor instituted criminal proceedings against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion” and for having publicly worn the dress of such a minister without having the right to do so. On 8 November 1991 the Court of Cassation, considering that there might be disturbances in Rodopi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the case should be heard in Salonika. 14. On 5 March 1993 the Salonika public prosecutor summoned the applicant to appear before the Salonika Criminal Court sitting at first instance and composed of a single judge to be tried for the offences provided for under Articles 175 and 176 of the Criminal Code. 15. The applicant was tried by the Salonika Criminal Court on 12 December 1994. He was represented by counsel. The court heard a number of prosecution and defence witnesses. Although one witness attested that the applicant had taken part in religious ceremonies, none of the witnesses stated that the applicant had purported to discharge the judicial functions with which muftis are entrusted in Greek law. Moreover, a number of witnesses attested that no official dress for muftis existed. However, one prosecution witness declared that, although in principle all Muslims were allowed to wear the black gown in which the applicant had been appearing, according to local custom this had become the privilege of muftis. 16. On 12 December 1994 the court found the applicant guilty of the offences provided for under Articles 175 and 176 of the Criminal Code. According to the court, these offences had been committed between 17 January and 28 February 1991, a period during which the applicant had discharged the entirety of the functions of the Mufti of Rodopi by officiating at weddings, “christening” children, preaching and engaging in administrative activities. In particular, the court found that on 17 January 1991 the applicant had issued a message to his fellow Muslims about the religious significance of the Regaib Kandil feast, thanking them at the same time for his election as mufti. On 15 February 1991, in the capacity of a mufti, he had attended the inauguration of the hall of the “Union of the Turkish Youth of Komotini” wearing clothes which, according to Muslim custom, only muftis were allowed to wear. On 27 February 1991 he had issued another message on the occasion of the Berat Kandil feast. Finally, on 28 February 1991 and in the same capacity, he had attended a religious gathering of 2,000 Muslims at Dokos, a village in Rodopi, and had delivered the keynote speech. Moreover, the court found that the applicant had repeatedly worn the official dress of a mufti in public. The court imposed on the applicant a commutable sentence of eight months’ imprisonment. 17. The applicant appealed. The hearing before the Salonika Criminal Court sitting on appeal and composed of three judges was adjourned on 24 May 1995 and 30 April 1996 because, inter alia, M.T., the appointed mufti, who had been called by the prosecution, did not appear to testify. M.T. was fined. The appeal was heard on 21 October 1996. In a decision issued on the same date the court upheld the applicant’s conviction and imposed on him a sentence of six months’ imprisonment to be commuted to a fine. 18. The applicant paid the fine and appealed on points of law. He submitted, inter alia, that the appellate court had interpreted Article 175 of the Criminal Code erroneously when it considered that the offence was made out even where a person claimed to be a minister of a “known religion” without, however, discharging any of the functions of the minister’s office. Moreover, the court had been wrong to disregard expert testimony that no official mufti dress existed. The applicant had the right under Article 10 of the Convention to make the statements for which he had been convicted. “The office of the mufti represented the free manifestation of the Muslim religion”, the Muslim community had the right under the Treaty of Peace of Athens of 1913 to elect its muftis and, therefore, his conviction violated Articles 9 and 14 of the Convention. 19. On 2 April 1997 the Court of Cassation dismissed the applicant’s appeal. It considered that the offence in Article 175 of the Criminal Code was made out “where somebody appeared in public as a minister of a ‘known religion’ and discharged the functions of the minister’s office, including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he had behaved and appeared in public as the Mufti of Rodopi, wearing the dress which, in people’s minds, was that of a mufti. In particular, the court referred to the incidents of 17 January and 15, 27 and 28 February 1991. The Court of Cassation did not specifically address the applicant’s arguments under Articles 9, 10 and 14 of the Convention. 20. Article 11 of the Treaty of Peace of Athens between Greece and others, on the one hand, and the Ottoman Empire, on the other, which was concluded on 17 May 1913 and ratified by the Greek parliament by a law published in the Official Gazette on 14 November 1913, provides as follows: (Translation) “The life, property, honour, religion and customs of the inhabitants of the districts ceded to Greece who will remain under Greek administration shall be scrupulously respected. They shall enjoy in full the same civil and political rights as the subjects of Greek origin. Muslims shall be entitled to freedom and to practise their religion openly. ... There shall be no interference with the autonomy or hierarchical organisation of existing or future Muslim communities or in the management of their funds or property. ... Each mufti shall be elected by Muslim voters in his own constituency. ... In addition to their authority in purely religious matters and in the supervision of the management of vacouf property, the muftis shall have jurisdiction as between Muslims in the spheres of marriage, divorce, maintenance (nefaca), guardianship, administration, capacity of minors, Islamic wills and succession to the office of mutevelli (Tevliét). Judgments delivered by the muftis shall be enforced by the competent Greek authorities. As regards successions, any interested Muslim party may with prior agreement submit a dispute to the mufti as arbitrator. Unless the agreement expressly provides otherwise, all avenues of appeal to the Greek courts shall lie against an arbitral award.” 21. On 10 August 1920 Greece concluded two treaties with the principal Allied Powers at Sèvres. By the first treaty the Allied Powers transferred to Greece all the rights and titles which they had acquired over Thrace by virtue of the peace treaty they had signed with Bulgaria at Neuilly-sur-Seine on 27 November 1919. The second treaty concerned the protection of minorities in Greece. Article 14 § 1 of the second treaty provides as follows: “Greece agrees to take all necessary measures in relation to the Muslims to enable questions of family law and personal status to be regulated in accordance with Muslim usage.” 22. On 30 January 1923 Greece and Turkey signed a treaty for the exchange of populations. On 24 July 1923 Greece and others, on the one hand, and Turkey, on the other, signed the Treaty of Peace of Lausanne. Articles 42 and 45 of this treaty gave the Muslim minority of Greece the same protection as Article 14 § 1 of the Sèvres Treaty for the Protection of Minorities. On the same day Greece signed a protocol with the principal Allied Powers bringing into force the two treaties concluded at Sèvres on 10 August 1920. The Greek parliament ratified the three above-mentioned treaties by a law published in the Official Gazette on 25 August 1923. 23. In its decision no. 1723/80 the Court of Cassation considered that it was obliged to apply Islamic law in certain disputes between Muslims by virtue of the Treaty of Peace of Athens of 1913, the Treaty for the Protection of Minorities of Sèvres of 1920 and the Treaty of Peace of Lausanne of 1923. 24. Law no. 2345/1920 provided that the muftis, in addition to their religious functions, had competence to adjudicate on family and inheritance disputes between Muslims to the extent that these disputes were governed by Islamic law. It also provided that the muftis were directly elected by the Muslims who had the right to vote in the national elections and who resided in the prefectoral district in which the muftis would serve. The elections were to be organised by the State and theological school graduates had the right to be candidates. Section 6(8) of the Law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the muftis. 25. Such a decree was never promulgated. The State appointed a mufti in Rodopi in 1920 and another one in March 1935. In June 1935 a mufti ad interim was appointed by the State. In the course of the same year the State appointed a regular mufti. This mufti was replaced by another in 1941, when Bulgaria occupied Thrace. He was reappointed by the Greek State in 1944. In 1948 the Greek authorities appointed a mufti ad interim until 1949, when a regular mufti was appointed. The latter served until 1985, when he died. 26. Under the legislative decree of 24 December 1990 the functions and qualifications of the muftis remain largely unchanged. However, provision is made for the appointment of the muftis by presidential decree following a proposal by the Minister of Education who, in turn, must consult a committee composed of the local prefect and a number of Muslim dignitaries chosen by the State. The legislative decree expressly abrogates Law no. 2345/1920 and provides that it should be ratified by law in accordance with Article 44 § 1 of the Constitution. 27. Law no. 1920/1991 retroactively validated the legislative decree of 24 December 1990. 28. Article 44 § 1 of the Constitution provides as follows: “In exceptional circumstances, when an extremely urgent and unforeseeable need arises, the President of the Republic may, on the proposal of the Council of Ministers, adopt legislative acts. These acts must be submitted to Parliament for approval ... within forty days …” 29. Article 175 of the Criminal Code provides as follows: “1. A person who intentionally usurps the functions of a State or municipal official shall be liable to a term of imprisonment not exceeding one year or a fine. 2. This provision also applies where a person usurps the functions of a lawyer or a minister of the Greek Orthodox Church or another known religion.” 30. The Court of Cassation considered that this provision applied in the case of a former priest of the Greek Orthodox Church who continued to wear the priests’ robes (judgment no. 378/80). The priest in question had been defrocked after joining the Old Calendarists, a religious movement formed by Greek Orthodox priests who wanted the Church to maintain the Julian calendar. In judgment no. 454/66 the Court of Cassation considered that the offence in Article 175 of the Criminal Code was also committed by a person who purported to discharge the administrative functions of a priest. In judgments nos. 140/64 and 476/71 the Court of Cassation applied Article 175 of the Code to cases of persons who had purported to exercise the religious functions of an Orthodox priest by conducting services, “christening” children, etc. 31. Article 176 of the Criminal Code provides as follows: “A person who publicly wears the dress or the insignia of a State or municipal official or of a minister of a religion referred to in Article 175 § 2 without having the right to do so ... shall be liable to a term of imprisonment not exceeding six months or a fine.” 32. Ministers of the Greek Orthodox Church and other “known religions” enjoy a number of privileges under domestic law. Inter alia, the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service.