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AS TO THE ADMISSIBILITY OF
Application No. 23372/94
by Dimitrios LARISSIS
against Greece
and
Application No. 26377/94
by Savvas MANDALARIDIS
against Greece
and
Application No. 26378/94
by Ioannis SARANDIS
against Greece
The European Commission of Human Rights sitting in private on
27 November 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 28 January 1994,
by Dimitrios LARISSIS, by Savvas MANDALARIDIS, Ioannis SARANDIS against
Greece and registered on 1 February 1994 (Applications Nos 26377/94,
26378/94) and 2 February 1994 (Application No. 23372/94) under file
Nos 23372/94, 26377/94, 26378/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the Commission's decision of 13 January 1995 to communicate
Application No. 23372/94;
- the observations submitted by the respondent Government on
22 May 1995 and the observations in reply submitted by the first
applicant on 19 July 1995;
- the Commission's decision of 3 April 1995 to communicate
Applications Nos 26377/95 and 26378/95;
- the observations submitted by the respondent Government on
7 June 1995 and the observations in reply submitted by the second
and third applicants on 3 August 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Greek citizen and an air-force officer,
born in 1949 in Trikala and currently residing in Tanagra Viotias. The
second applicant is a Greek citizen and a retired air-force officer,
born in 1948 in Ptolemaida and currently residing in Agria Volou. The
third applicant is a Greek citizen and an air-force officer, born in
1951 in Grevena and currently residing in Kamatero Attikis.
In the proceedings before the Commission they are represented by
G. Patsaouras, a lawyer practising in Athens and Prof. Dr. J.W.
Montgomery and Mr. P. Diamond, lawyers practising in London.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
1. Particular circumstances of the case
On 18 May 1992 the applicants, who are followers of the
Pentecostal Church, were tried by the Permanent Air-Force Court
(Diarkes Stratodikio Aeroporias) of Athens for proselytism, under
Article 4 of Law 1363/38, as amended by Law 1672/39, allegedly
committed against other members of the air-force and a number of
civilians, all of them followers of the Greek Orthodox Church.
In a decision delivered on the same day the court rejected an
exception raised by the defence as to the unconstitutionality of the
law on proselytism. The court found that no issues could arise under
the principle nullum crimen sine lege certa as a result of the non-
exhaustive enumeration in the criminal statute of the means by which
the intrusion on someone else's religious beliefs may be brought about.
The court further found the applicants guilty of proselytism. More in
particular, the court held in respect of the first applicant the
following:
"The accused, while he was a military officer, i.e. a pilot
officer, serving in Unit X, committed the offence of
proselytism in the military camp of this unit between
November 1986 and December 1987 by engaging in several acts
which, however, gave rise to a single, albeit continuing,
breach of the relevant criminal provision; acting with the
aim of intruding on and changing the religious beliefs of
airman G. A(ntoniadis), an Orthodox Christian who served in
the same unit, and abusing the trust which G.A, as a
hierarchically subordinate, had in him, the accused tried
on approximately twenty occasions to persuade G.A to become
a member of the sect of the Pentecostal Church by engaging
in discussions on theology with him in the course of which
the accused contested the correctness of the teachings of
the University department of theology concerning God and
the Orthodox dogma, encouraged G.A to read the Bible in the
light of the accused's own beliefs as a member of the
Pentecostal Church, questioned the holy traditions and
recommended G.A to visit the church of the Pentecostal sect
in Athens.
Acting in the same capacity, the accused committed the
offence of proselytism between May 1987 and February 1988
by engaging in several acts which, however, gave rise to a
single, albeit continuing, breach of the relevant criminal
provision; acting with the aim of intruding on and changing
the religious beliefs of airman A. Ko(kkalis), an Orthodox
Christian who served in the same unit, the accused tried on
approximately thirty occasions to persuade A.Ko to become
a member of the sect of the Church of Pentecost by
engaging, persistently and importunately, in discussions
with A.Ko on the correctness of the applicant's beliefs as
a member of the sect of the Pentecostal Church, questioning
the holiness of the Christian Orthodox Church, inviting
A.Ko to listen to taped recordings on the beliefs of the
Pentecostal sect, taking advantage of the trust inherent in
a relationship between a subordinate and a superior and of
the naivety and inexperience of A.Ko, a person of young
age, and telling him that in the accused's church some
persons started speaking foreign languages under the effect
of the Holy Power.
Acting in the same capacity, the accused committed the
offence of proselytism between spring 1989 and
18 August 1989 in the place mentioned above by engaging in
several acts which, however, gave rise to a single, albeit
continuing, breach of the relevant criminal provision;
acting with the aim of intruding on and changing the
religious beliefs of airman N. Ka(fkas), who served under
his orders in the same unit, and taking advantage of the
trust inherent in a relationship between a subordinate and
a superior, and of the naivety and inexperience of the
young man, the accused tried to persuade N.Ka to become a
member of the sect of the Church of Pentecost by
continually, persistently and importunately expounding on
his beliefs concerning the sect of the Pentecostal Church,
continually reading and explaining to N.Ka the Bible in the
light of the accused's own beliefs and providing N.Ka with
copies of a publication of his dogma entitled
'Christianity'. The accused succeeded in converting N.Ka by
taking advantage of the latter's inexperience concerning
theological matters and the influence he had on N.Ka
because of his position and rank."
The court also found that the first applicant had engaged in
proselytism vis-à-vis another airman, S. V(oikos).
In respect of the second applicant the court held the following:
"The accused, while he was a military officer, i.e. a
flying officer, serving in Unit X, committed the offence of
proselytism in the military camp of this unit between
November 1986 and December 1987 by engaging in several acts
which, however, gave rise to a single, albeit continuing,
breach of the relevant criminal provision; taking advantage
of the authority he could exercise because of the
difference in rank on airman G. A(ntoniadis), who served in
the same unit, the accused tried on approximately seven
occasions and on dates which have not been specified to
intrude on and change the religious beliefs of G.A by means
of skilful discussions with him concerning religion and
pressing exhortations; the accused urged G.A to study,
because of his youth, nothing but the Gospel where G.A
would find the truth which differed from the Orthodox
dogma; he also tried to convince G.A by means of a skilful
interpretation of extracts from the Holy Gospel, in
accordance with the beliefs of the sect of the Pentecost,
that the Orthodox faith is not correct, that G.A should
adopt the beliefs of the accused, urging him at the same
time in a pressing manner to visit while on leave the
church of the Pentecostal sect in Athens.
The accused also committed the offence of proselytism in
Volos in 1988 by engaging in several acts which, however,
gave rise to a single, albeit continuing, breach of the
relevant criminal provision; taking advantage of the
inexperience and intellectual weakness of A. Z(ounara), he
tried on several occasions and on dates which have not been
specified to intrude on and change the religious beliefs of
A.Z engaging in a skilful analysis of the beliefs of the
sect of the Pentecost and of their difference from the
Orthodox faith and elaborating on the correctness of the
former; he tried persistently to convince A.Z that the
followers of the Pentecostal Church bore marks given to
them by God, that they could prophesy the future, that A.Z
and her children were possessed by the devil, that the
devil was fighting to keep control over her, that A.Z
worshipped idols and daemons and that the Pentecostal
church was the holder of the truth; the accused also urged
A.Z in a pressing manner to get baptised and become a
member of the Pentecostal Church.
The accused also committed the offence of proselytism in
Volos on a date which has not been specified towards the
beginning of June 1989; the accused, having been summoned
by I. B(airamis), another officer, went to the house of A.
B(airamis), I.B's brother, where H. A(postolidis, the
brother-in-law of I.B and A.B), a follower of the sect of
the Pentecostal Church, was in a delirious state under the
influence of his religious beliefs foaming, invoking
Christ's name and saying 'thank you Christ, because I have
known the truth, I see the devil in my wife's and my
children's faces'; his mere appearance having calmed H.A,
the accused skilfully took advantage of the above-mentioned
incident and tried to intrude on and change the religious
beliefs of A.B, M. B(airami), S. B(airami), E. B(airami),
who were present during the incident and had been impressed
by it, and of a number of neighbours who gathered
afterwards; the accused preached to them elaborating on the
beliefs of the sect of the Pentecostal Church, telling
them, among others, that their church was the correct one
and not the Orthodox religion, that in 1992 the world would
come to an end and the church would be 'captured'; the
accused urged them persistently and importunately to
believe in the true Christ and told them that, by virtue of
being Christian Orthodox, they had taken sides with the
devil."
In respect of the third applicant the court held the following:
"The accused, while he was a military officer, i.e. a pilot
officer, serving in Unit X, committed the offence of
proselytism in the military camp of this unit between May
1987 and February 1988 by engaging in several acts which,
however, gave rise to a single, albeit continuing, breach
of the relevant criminal provision; acting with the aim of
intruding on and changing the religious beliefs of airman
A. Ko(kkalis), an Orthodox Christian who served in the same
unit, and taking advantage of the trust inherent in a
relationship between a subordinate and a superior, the
accused tried more than fifty times to convince A.Ko that
the teachings of the Orthodox faith were not correct on a
number of issues, such as the virginity of the Holy Mother,
the ranks of the priests, the power of the Holy Spirit
etc.; the accused would engage with A.Ko in persistent and
importunate discussions regarding the teachings of the sect
of the Pentecostal Church, of which the accused was a
follower, he would tell A.Ko that the teachings of the sect
and not those of the Orthodox Church were correct and he
would urge A.Ko to visit a place in Larissa where the
followers of the Pentecostal Church used to gather and to
become a member; the accused also gave A.Ko a free copy of
a periodical published by the followers of the Pentecostal
Church entitled 'Christianity'; in the course of the
above-mentioned encounters the accused intentionally failed
to reveal to A.Ko that he was a member of the Pentecostal
sect.
Acting in the same capacity the accused committed the
offence of proselytism in the same place for a period of
four to five months in 1998 by engaging in several acts
which, however, gave rise to a single, albeit continuing,
breach of the relevant criminal provision; acting with the
aim of intruding on and changing the religious beliefs of
A. Z(ounara), an Orthodox Christian, and skilfully taking
advantage of her inexperience in religious matters and her
intellectual weakness, which resulted from her low level of
education, the accused tried importunately to persuade A.Z
to be baptised and become a member of the sect of the
Pentecostal Church telling her constantly that he bore
signs given to him by God, that he could tell the future
and that she and her children were possessed; the accused
intended to undermine A.Z's faith in Orthodoxy and convert
her to the sect of the Pentecostal Church.
Acting in the same capacity the accused committed the
offence of proselytism in the same place between spring
1989 and 18 August 1989 by engaging in several acts which,
however, gave rise to a single, albeit continuing, breach
of the relevant criminal provision; acting with the aim of
intruding on and changing the religious beliefs of airman
N. Ka(fkas), an Orthodox Christian who served in the same
unit, and taking advantage of the trust inherent in a
relationship between a subordinate and a superior and of
the naivety and inexperience of N.Ka, the accused tried to
persuade N.Ka to adhere to the sect of the Pentecostal
Church; the accused would engage in continual, persistent
and importunate analysis of his beliefs regarding the sect
of the Pentecostal Church, read to N.Ka continually the
Gospel which the accused would interpret in accordance with
his own beliefs, give to N.Ka publications of his sect and
take N.Ka to his place of worship; the accused succeeded in
converting N.Ka taking advantage of his inexperience
concerning religious matters and the influence he had on
N.Ka because of his position and rank."
The court also found that the third applicant had engaged in
proselytism vis-à-vis a warrant officer, Th. T(sikas).
The court imposed on the first applicant the penalties of five
months' imprisonment for the proselytism of G. A(ntoniadis), five
months' imprisonment for the proselytism of A. Ko(kkalis), five months'
imprisonment for the proselytism of S. V(oikos) and seven months'
imprisonment for the proselytism of N. Ka(fkas). The court ordered the
first applicant to serve an overall sentence of thirteen months'
imprisonment.
On the second applicant the court imposed the penalties of five
months' imprisonment for the proselytism of G. A(ntoniadis), five
months' imprisonment for the proselytism of A. Z(ounara), and eight
months' imprisonment for the proselytism of A. B(airamis, M. B(airami)
and the others. The court ordered the second applicant to serve an
overall sentence of twelve months' imprisonment.
On the third applicant the court imposed the penalties of eight
months' imprisonment for the proselytism of A. Ko(kkalis), five months'
imprisonment for the proselytism of A. Z(ounara), five months'
imprisonment for the proselytism of Th. T(sikas) and seven months'
imprisonment for the proselytism of N. Ka(fkas). The court ordered the
third applicant to serve an overall sentence of fourteen months'
imprisonment.
Finally, the court ordered that the penalties should be converted
to fines and that they should not be enforced provided that the
applicants did not commit new criminal offences in the following three
years.
The applicant appealed immediately before the Courts-Martial
Appeal Court (Anatheoritiko Dikastirio). Their appeal was heard on
7 October 1992. In a judgment pronounced on the same day the appeal
court rejected a plea raised by the defence to the effect that the
accused had merely exercised a constitutional right. It also upheld
most of the applicants' convictions, using the same reasoning as the
first instance court. It reversed, however, the conviction of the first
applicant for the proselytism of S. V(oikos) and that of the third
applicant for the proselytism of Th. T(sikas).
The appeal court imposed on the first and third applicants in
respect of the convictions it had upheld the same penalties as the
first instance court. However, their overall sentences were reduced to
eleven and twelve months' imprisonment respectively. The second
applicant's penalties were reduced by the appeal court to four months'
imprisonment for the proselytism of G. A(ntoniadis), four months'
imprisonment for the proselytism of A. Z(ounara), and six months'
imprisonment for the proselytism of A. B(airamis), M. B(airami) and the
others. His overall sentence was reduced to ten months' imprisonment.
As none of the overall sentences imposed involved more than one
year's imprisonment, the court pronounced that they were automatically
converted into pecuniary penalties of 1,000 drachmas per day. The court
finally ordered that the penalties should not be enforced provided that
the applicants did not commit new criminal offences in the following
three years.
The applicant appealed in cassation. In a judgment delivered on
30 July 1993 the Court of Cassation (Arios Pagos) considered that the
crime of proselytism was committed when a person attempted to intrude
directly or indirectly on the religious beliefs of a person of
different religious convictions, with the aim of undermining them,
using one of the indicatively enumerated means in the relevant criminal
provision.
Article 4 of Law 1363/38 was found to be fully in accordance with
the provisions of the Greek Constitution which guarantee the principle
nullum crimen sine lege certa and the right to religious freedom. It
was also found to be in accordance with Article 9 of the European
Convention on Human Rights, since it did not purport to criminalise
religious beliefs, but only the attempt to intrude on the religious
beliefs of someone else with the aim of changing them. As a result, the
court rejected the applicant's plea that the law was unconstitutional.
As regards the particular circumstances of the case, the court
considered that the military courts had correctly interpreted and
applied Article 4 of Law 1363/38 when they convicted the applicants
using the particular reasoning. The court rejected the applicant's
appeal.
2. Relevant Domestic Law
Article 4 of Law 1363/38, as amended by Law 1672/39, provides as
follows:
1. Anyone engaging in proselytism shall be liable to
imprisonment and a fine of between 1,000 drachmas and
50,000 drachmas; he shall, moreover, be subject to police
supervision for a period of between six months and one year
to be fixed by the court when convicting the offender. The
term of imprisonment may not be commuted to a fine.
2. By 'proselytism' is meant, in particular, any direct or
indirect attempt to intrude on the religious beliefs of a
person of a different religious persuasion (eterodoxos),
with the aim of undermining those beliefs, either by any
kind of inducement or promise of an inducement or moral
support or material assistance, or by fraudulent means or
by taking advantage of his inexperience, trust, need, low
intellect or naivety.
3. The commission of such an offence in a school or other
educational establishment or philanthropic institution
shall constitute a particularly aggravating circumstance."
COMPLAINTS
The applicants complain of their conviction for proselytism under
Article 4 of Law 1363/38, as amended by Law 1672/39. They invoke
Articles 7, 9, 10 and 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 23372/94 was introduced on 28 January 1994 and
registered on 2 February 1994.
On 13 January 1995 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 22 May 1995 the Government submitted their observations after
an extension of the time-limit fixed for this purpose. The applicant's
observations in reply were submitted on 19 July 1995.
Applications Nos. 26377/95 and 26378/95 were introduced on
28 January 1994 and registered on 1 February 1995.
On 3 April 1995 the Commission decided to communicate these
applications to the respondent Government for observations on the
admissibility and merits.
On 7 June 1995 the Government submitted their observations. The
applicants' observations in reply were submitted on 3 August 1995.
THE LAW
1. The Commission, having regard to the connection between the three
cases and the similar nature of the issues raised, considers it
appropriate to order the joinder of the present applications under Rule
35 of its Rules of Procedure.
2. The applicants complain of their conviction for proselytism under
Article 4 of Law 1363/38, as amended by Law 1672/39. They rely on
Articles 7, 9, 10 and 14 (Art. 7, 9, 10, 14) of the Convention.
Insofar as relevant, these provisions read as follows:
Article 7 para. 1 (Art. 7-1) of the Convention
"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. ...."
Article 9 (Art. 9) of the Convention
"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 in 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 10 (Art. 10) of the Convention
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ....
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
Article 14 (Art. 14) of the Convention
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The respondent Government submit that the applicants' conviction
was in accordance with Article 7 (Art. 7) of the Convention and was
"prescribed by law" within the meaning of Articles 9 para. 2 and
Article 10 para. 2 (Art. 9-2, 10-2) of the Convention. They refer to
the judgment of 25 May 1993 of the Court in the Kokkinakis case (Series
A no. 260) and specify that, although Article 4 of Law 1363/38, as
amended by Law 1672/39, does not contain an exhaustive enumeration of
the means by which the offence of proselytism may be committed, this
is necessary to avoid excessive rigidity and keep pace with changing
circumstances. Moreover, the letter of the provision is supplemented
by a body of settled national case-law, which is mentioned in the
Court's judgment in the Kokkinakis case.
The Government further argue that, as it was accepted by the
Court in its judgment in the Kokkinakis case, the aim of the law on
proselytism is "the protection of the rights and freedoms of others"
within the meaning of Articles 9 para. 2 and 10 para. 2
(Art. 9-2, 10-2) of the Convention. In the particular circumstances,
the conviction of the applicants also served another legitimate aim
under the above-mentioned Convention provisions, the protection of
public safety and order. The Government submit that the prevention of
disorder in the armed forces is indispensable for the general public
safety and order. The applicants' conviction was intended to preserve
peace and cohesion among soldiers and by extension safety in the armed
forces. The Government submit that there is no place in the armed
forces for the heated discussions and animosity which may be caused by
attempts to change the religious beliefs of subordinates.
The Government contend that, since Article 4 of Law 1363/38
punishes improper proselytism only, it is fully compatible with
Article 9 (Art. 9) of the Convention, as interpreted in Kokkinakis.
As regards the particular circumstances of the cases, the
Government claim that they could be distinguished from those of the
Kokkinakis case. First, the applicants were military officers, who were
subject to special conditions and had specific "duties" and
"responsibilities" within the meaning of Article 10 (Art. 10) of the
Convention which could justify wider restrictions on their Convention
rights. More in particular, young persons under their command or
persons who were vulnerable and intellectually weak, because of their
social status, difficult family circumstances and low level of
education, were liable to attach special weight to the applicants'
views, because of the applicants' professional capacity. Secondly, the
applicants engaged themselves in more than one act of proselytism over
a long period of time and were so persistent and systematic that their
attempt to change their victims' religious beliefs could be assimilated
to an attack. Thirdly, the offences took place in military premises
when the applicants and quite often their victims were on duty.
The Government submit that the applicants' convictions were
necessary in a democratic society because the applicants took advantage
of the influence which officers by definition have over ordinary
soldiers and of the confidence which young soldiers have in them. The
Government refer in this connection to the special relations of
dependency which are created in the military forces, as a result of the
strict hierarchical structure of the army, and which do not permit the
development of a free dialogue on an equal basis between an officer and
a subordinate. They rely in this respect to the testimonies of
G. A(ntoniadis), A. Ko(kkalis), A. Ka(fkas), N. Ka(fkas) and
I. B(airamis).
The second and third applicants also took advantage of the
psychological problems which difficult family circumstances had created
to A. Z(ounara), her level of education and the respect she had for
military officers. The Government refer in this connection to the
statement of A.Z before the investigating judge.
The Government, finally, stress that the requirement of
proportionality in Articles 9 para. 2 and 10 para. 2
(Art. 9-2, 10-2) of the Convention could not have been breached, since
the penalty imposed at first instance had been suspended and the
penalty imposed on appeal was first converted into a fine and then
suspended.
The applicants submit that the ambiguous, vague and overbroad
language of Article 4 of Law 1363/38 is not compatible with the
requirement of legal certainty under Article 7 and Articles 9 para. 2
and 10 para. 2 (Art. 7, 9-2, 10-2) of the Convention. The case-law
relied on by the Government proves that any form of evangelism could
be considered to be a crime by the Greek courts. This case-law left the
applicants in doubt as to whether they could give testimony with
impunity of their faith to their colleagues.
The applicants further argue that the Greek law on proselytism
is fundamentally incompatible with the Convention, because of its
chilling effect on the rights guaranteed under Articles 9 and 10
(Art. 9, 10) thereof.
The applicants contend that their convictions were not necessary
in a democratic society. They consider that the thrust of the Court's
judgment in the Kokkinakis case is to place the heaviest burden on the
State that wishes to justify restrictions on religious freedom. Yet,
the domestic courts have failed to substantiate in their decisions the
use of improper means on the part of the applicants on either the
airmen or civilians.
The applicants also argue that it is difficult to imagine a
pressing social need capable of restricting the freedom to engage in
responsible religious evangelism as exercised by adherents of mainline
Christian denominations, such as the Pentecostal Church. As regards
their convictions for the proselytism of airmen, the applicants stress
that they only had informal discussions with them. Such discussions had
not been made a compulsory part of military training. No sanctions were
imposed or threatened to the airmen who did not accept the viewpoint
of the applicants or refused to listen to them, nor was any inducement
offered. The fact that the discussions were held between a superior and
a subordinate could not justify in itself the limitation of the
applicants' rights. Most social structures in modern societies are
hierarchical and, if States were permitted to criminalise religious
discussions between a superior and a subordinate, religious freedom
would be seriously undermined. Moreover, the airmen in question were
sufficiently mature to die for their country, so a fortiori they were
sufficiently mature to discuss and take decisions for themselves in
regard to religious matters.
Furthermore, the applicants argue that the religious discussions
in question did not prevent the applicants from discharging their
military functions. The religious beliefs of the applicants, not being
pacifist, were not in any sense dangerous to military efficiency. The
Government has not demonstrated that the presentation of the
applicants' faith would necessarily produce military and social
anarchy.
As regards the facts of each case of alleged proselytism, the
applicants stress that G. A(ntoniadis) testified, in respect of the
only incident of alleged proselytism identifiable in place and time,
that he was approached by the first applicant "after hours". G.A's
subjective fear is not backed by any subjective evidence. All airmen
were able to refuse the applicants' advances without any consequences.
N. Ka(fkas)'s own testimony, which exonerates the first and third
applicants, is to be preferred to that of his father A. Ka(fkas), which
is hearsay.
A. Z(ounara) was not cross-examined by the defence. In any event,
her statement does not refer to any coercion on the part of the second
or third applicants nor does it disclose any intellectual weakness on
her part. The difference in social status between the second and third
applicants and her cannot form the basis for limiting the Convention
rights of the former. Her psychological problems were not the result
of proselytism, but of her family break-up. There is no evidence to
associate the latter with the second and third applicants' evangelistic
activities. In any event, A.Z proved to be in control of the situation
and, exercising her free will, she severed all contact with the
two applicants.
Finally, the applicants argue that the imposition of a criminal
penalty, even when limited or commuted to a pecuniary fine, constituted
a disproportionate interference with their rights under the Convention.
In the light of the parties' observations, the Commission
considers that the applications raise serious questions of fact and law
which are of such complexity that their determination should depend on
an examination of the merits. The applications cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground
for declaring them inadmissible has been established.
For these reasons, the Commission,
unanimously
ORDERS THE JOINDER OF APPLICATIONS NOS. 23372/94, 26377/95 and
26378/95;
by a majority
DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)