Judgment in the case of Larissis and Others v. Greece

Press release issued by the Registrar of the European Court of Human Rights, 24 February 1998

In a judgment delivered at Strasbourg on 24 February 1998 in the case of Larissis and Others v. Greece, the European Court of Human Rights held inter alia that there had been no violation of Article 7 of the European Convention of Human Rights (eight votes to one), that there had been no violation of Article 9 of the Convention in respect of measures taken against the applicants for the proselytising of airmen (eight votes to one and seven votes to two) and that there had been a violation of Article 9 in respect of measures taken against them for proselytising civilians (seven votes to two). Under Article 50 of the Convention, the Court awarded the applicants specified sums for non-pecuniary damages and legal costs and expenses.

The judgment was read out in open court by Mr Feyyaz Gölcüklü, the President of the Chamber.

The complete text of the judgment is available in:

http://www.dhcour.coe.fr/eng/LARISSIS%20ENG.html

I. BACKGROUND TO THE CASE

A. Principal facts

The three applicants are Greek citizens. Mr Dimitrios Larissis was born in 1949 and lives in Tanagra Viotias. Mr Savvas Mandalarides was born in 1948 and lives in Agria Volou. Mr Ioannis Sarandis was born in 1951 and lives in Kamatero Attikis. At all material times they were officers in the Greek Air Force and followers of the Pentecostal Church.

Between 1986 and 1989 all three applicants allegedly approached various airmen serving under them, all of whom were Orthodox Christians, and spoke to them about the teachings of the Pentecostal Church. In addition, two of the applicants attempted to convert a number of civilians.

They were charged with offences of proselytism under section 4 of Law no. 1363/1938 (”section 4”), which provides that it is a criminal offence to engage in proselytism, by which is meant, “in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person's inexperience, trust, need, low intellect or naivety.”

On 18 May 1992 the applicants stood trial before the Permanent Air Force Court of Athens, which dismissed their objection that section 4 was unconstitutional and convicted them of various offences of proselytism against airmen and civilians. They were sentenced to twelve, thirteen and fourteen months' imprisonment respectively, convertible into pecuniary penalties; but these penalties were not to be enforced provided that they did not commit new offences in the following three years.

The applicants appealed, and on 7 October 1992 the Court-Martial Appeal Court upheld the judgment of the Athens Permanent Air Force Court, but reduced the prison sentences by two months.

The applicants lodged with the Court of Cassation an appeal on points of law which was dismissed on 30 July 1993. The Court of Cassation held that section 4 did not contravene either the provisions of the Greek Constitution, which enshrine the principle of nullum crimen sine lege certa and the right to religious freedom, or Article 9 of the European Convention on Human Rights.

B. Proceedings before the European Commission of Human Rights

The applications to the Commission, lodged on 28 January 1994, were declared admissible on 27 November 1995.

Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report on on 12 September 1996 in which it established the facts and expressed the following opinions:

(a) there had been a violation of Article 9 in so far as the second applicant was convicted for the proselytism of some of the civilians (unanimously);

(b) there had been a violation of Article 9 in so far as the second and third applicants were convicted for the proselytism of one of the civilians (24 votes to 5);

(c) there had been no violation of Article 9 in so far as the first and second applicants were convicted for the proselytism of one airman and the first and third applicants were convicted for the proselytism of another airman (28 votes to 1);

(d) there had been no violation of Article 9 in so far as the first and third applicants were convicted for the proselytism of a third airman (23 votes to 6);

(e) there had been no violation of Article 7 (28 votes to 1);

(f) no separate issue arose under Article 10 (unanimously);

(g) no separate issue arose under Article 14 taken in conjunction with Article 9 in so far as the second applicant was convicted for the proselytism of the civilians and the second and third applicants were convicted for the proselytism of one of the civilians (unanimously);

(h) there had been no violation of Article 14 taken in conjunction with Article 9 in so far as the first and second applicants were convicted for the proselytism of one airman and the first and third applicants were convicted for the proselytism of the other two airmen (unanimously).

It referred the case to the Court on 28 October 1996.

II. SUMMARY OF THE JUDGMENT

The applicants complained principally that the Greek law against proselytism was not sufficiently clearly defined and that its application to them constituted an unjustified interference with their right to exercise their religious freedom.

A. Article 7 of the Convention

The Court recalled its finding in the Kokkinakis v. Greece judgment of 25 May 1993 that the definition of the offence of proselytism contained in section 4, together with the settled body of national case-law interpreting and applying it, satisfied the conditions of certainty and foreseeability prescribed by Article 7 of the Convention.

It was not persuaded that the position in Greek law had become any less clear in the period of under five years since that evaluation. Bearing in mind that the need to avoid excessive rigidity and to keep pace with changing circumstances meant that many laws were inevitably couched in terms which were, to a greater or lesser extent, vague, it saw no reason to reverse its previous decision.

It therefore found no violation of Article 7 of the Convention.

[See paragraphs 32-35 of the judgment and point 1 of the operative provisions]

B. Article 9 of the Convention

1. Interference

It was not disputed before the Court that the prosecution, conviction and punishment of the applicants for offences of proselytism amounted to interferences with the exercise of their rights to freedom to manifest their religion or belief.

2. “Prescribed by law”

The expression “prescribed by law” in Article 9 § 2 required inter alia that the law in question should be both adequately accessible to the individual and formulated with sufficient precision to enable him to regulate his conduct.

On the same grounds on which it had found no violation of Article 7, the Court found that the measures in question were “prescribed by law”.

3. Legitimate aim

The Court considered that the measures taken against the applicants pursued the legitimate aim of protecting the rights and freedoms of others.

4. “Necessary in a democratic society”

The Court emphasised that while religious freedom was primarily a matter of individual conscience, it also implied, inter alia, freedom to manifest one's religion, including the right to try to convince one's neighbour. Article 9 did not, however, protect every act motivated or inspired by a religion or belief, for example, improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a Church.

The Court had to determine whether the measures taken against the applicants were justified in principle and proportionate. Since different factors came into the balance in relation to the proselytising of the airmen and that of the civilians, it assessed the two matters separately.

(a) The proselytising of the airmen

States might, in certain circumstances, be justified in taking special measures to protect subordinate members of the armed forces from harrassment or abuse of power, since, due to the influence of military hierarchical structures, subordinates could find it difficult to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him.

Referring to the evidence adduced in the domestic proceedings, the Court found that the three airmen with whom the applicants had discussed religion appeared to have felt themselves constrained and subject to a certain degree of pressure owing to the applicants' status as officers. It noted that the measures taken against the latter were not particularly severe and were more preventative than punitive in nature. In all the circumstances of the case, therefore, it did not find that these measures were disproportionate or that there had been a violation of Article 9 in relation to the conviction of the applicants for proselytising the airmen.

(b) The proselytising of the civilians

The Court found it of decisive significance that the civilians whom two of the applicants had attempted to convert were not subject to pressures and constraints of the same kind as the airmen. It did not find that they required any special protection or that the applicants had acted improperly towards them. It followed that the measures taken against the two applicants for proselytism in respect of the civilians were unjustified, and amounted to a violation of Article 9.

[paragraphs 36-61 of the judgment and points 2-4 of the operative provisions]

C. Article 10 of the Convention

The Court found that no separate issue arose under this provision.

[paragraph 64 of the judgment and point 5 of the operative provisions]

D. Articles 14 and 9 of the Convention taken together

The Court did not find it established that the measures taken against the applicants for proselytising the airmen were discriminatory, or gave rise to a violation of Article 14 taken in conjunction with Article 9.

Having found a violation of Article 9 in relation to the measures taken against them for proselytising the civilians, it found that no separate issue arose under Article 14 in this context.

[paragraphs 65-69 of the judgment and points 6-7 of the operative provisions.]

E. Article 50 of the Convention

The Court awarded, by way of compensation for non-pecuniary damage, GRD 500,000 to each of the two applicants in respect of whom it had found a violation of Article 9.

It also awarded to them legal costs and expenses totalling GBP 6,000.

[paragraphs 71-77 of the judgment and point 8 of the operative provisions.]

Judgment was given by a Chamber composed of nine judges, namely Mr F. Gölcüklü (Turkish), President, Mr R. Macdonald (Canadian), Mr J. De Meyer (Belgian), Mr N. Valticos (Greek), Mr R. Pekkanen (Finnish), Mr J.M. Morenilla (Spanish), Mr B. Repik (Slovakian), Mr P. Kuris (Lithuanian) and Mr P. van Dijk (Dutch), and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar.

Judges De Meyer, Valticos, Morenilla, Repik and van Dijk expressed separate opinions and these are annexed to the judgment.

The judgment will be published shortly in Reports of Judgments and Decisions 1998 (available from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln). Judgments are available on the day of delivery on the Court's Internet site (www.dhcour.coe.fr)

Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.

Registry of the European Court of Human Rights F ` 67075 Strasbourg Cedex Contact: Mr Roderick LIDDELL Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91

APPENDIX

Convention Articles referred to in the release

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 50

“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”