National Security, Defamation / Reputation
Mwenda v. Attorney General
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The Grand Chamber of the European Court of Human Rights (“ECtHR”) held, by twelve votes to eight, that the conviction of an officer of the crime of insult to the army due to his letter to a superior officer had violated the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights (“ECHR”). Mr. Grigoriades (the applicant) was a conscripted probationary reserve officer, who had served his regular time in the army service but due to a disciplinary penalty, was ordered to serve additional time in the military. In response, he sent a letter to his superior stating he would not return to the army on the ground that the army was “an apparatus opposed to man and society” and further “a criminal and terrorist apparatus”. He was tried for desertion and insult of the army. The national courts convicted him for insulting the army but dropped the charges of desertion. The ECtHR found that the applicant did not insult anyone specifically but his remarks in the letter were a part of the context of a general and lengthy discourse critical of the army as an institution. Moreover, he neither published the letter nor disseminated it. Thus, there was a violation of the applicant’s right to expression under Article 10 of the ECHR.
The applicant, Mr. Grigoriades, was a conscripted probationary reserve officer holding the rank of second lieutenant. According to his claims, he discovered numerous abuses against conscripts which he brought to the attention of his superiors and were not well received. His superiors initiated disciplinary proceedings against him which resulted in Mr. Grigoriades being penalized and ordered to serve additional time in the army.
On April 30, 1989, after being granted 24-hour leave, he did not return to the service. After six days, the army declared him as a deserter, and they brought criminal charges against Mr. Grigoriades. On May 10, 1989, the applicant sent a letter to his unit’s commanding officer through a middle man. In the letter he criticized the Greek military labeling them “an apparatus opposed to man and society and, by its nature, contrary to peace”. He insisted that the army was “a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly [had aimed] 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”. A copy of the letter was shown to another military officer by the applicant. Evidence showed that no one else read the letter. On account of the scathing critique of the army, the commanding officer instituted an additional criminal proceeding against Mr. Grigoriades for insulting the army.
After the completion of a closed hearing on June 27, 1989, the Permanent Army Tribunal found the applicant guilty of desertion and insult. Taking account of the fact that the applicant was a first-offender, the Tribunal sentenced him to imprisonment for one year and eight months for desertion, and three months for the insult offense, as well as ordered him to serve a global sentence of one year and ten months. The applicant appealed to the Military Appeal Court, which, by a judgment dated September 5, 1989, quashed the applicant’s conviction for desertion. Yet, the majority of judges (by three votes to two) considered the first-instance decision for the insult to be valid. A further appellate judgement by the Military Appeal Court on September 5, 1989, sentenced the applicant to an imprisonment of three months taking into account that he had no prior history of conviction. The applicant was released immediately, considering that he had already served the sentence on remand.
Mr. Grigoriades subsequently lodged an appeal on points of law at the Court of Cassation. He argued that Article 74 of the Military Criminal Code was vague and that his general criticism of the armed forces could not have been qualified as the insult. At the plenary session, the court upheld the applicant’s conviction. Thereafter, the applicant applied to the European Commission [a former ECHR organ] on March 17, 1994 alleging violation of the right to freedom of expression under Article 10 of the ECHR. He claimed that there was also a violation under Article 7 of ECHR on account of his conviction under imprecise provision of criminal law.
The Grand Chamber of the European Court of Human Rights delivered the judgment of the Court. The primary issue before the ECtHR was whether the criminal conviction of the applicant had violated his right to freedom of expression under Article 10 of ECHR. The applicant had also claimed that the principle of legality, enshrined in Article 7 of ECHR, had been violated.
Article 10 of the ECHR provides every individual the right to hold opinions and impart information and ideas without interference to public authority and regardless of frontiers, subject to certain restrictions. These include circumstances where restriction on speech is necessary 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. Whereas, Article 7 prescribes that 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.
As per the relevant domestic law, Article 74 of the Military Criminal Code of Greece provided for a punishment of at least six months for any member of the armed forces who insulted the flag, the armed forces, or an emblem of their command. Besides, Article 181 of the Criminal Code provided for an imprisonment for up to two years for any person insulted or, as a display of hatred or contempt, damaged or disfigured an emblem or symbol of State sovereignty or the President of the Republic.
The ECtHR firstly analyzed the right to freedom of expression, in accordance with the three-part test of the interference’s prescription by law, pursuance of a legitimate aim, and the necessity in a democratic society. In response to the question if the interference was prescribed by law, the applicant had argued that Article 74 of the Military Criminal Code was not precise enough to satisfy the “foreseeability” requirement that emanated from the expression “prescribed by law”. According to the applicant, Article 74 did not define the concept of “insult” or specify acts considered to be insulting.
The Government, on the other hand, had relied on the link between Article 74 and Article 181 as well as relevant case-law on Article 181 clarifying the notion of “insult”. However, the Court deemed it irrelevant since the expression used in Article 181 of the Criminal Code (and accordingly construed by the case-law) was based on a verb meaning “to insult”, unlike Article 74 of the Military Criminal Code, which used another verb which could be more accurately translated as “to offend”.
In response to these arguments, the Court reiterated its common holding on clarity of the law – that the “relevant national law must be formulated with sufficient precision to enable the persons concerned to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” [para. 37]. This standard was met in this case even though Article 74 was broad. According to the Court, the ordinary meaning of the word “insult” is akin to the expression “offend”, and therefore, it was essential that its meaning ought to have been clear to the applicant. Hence, the legality condition was fulfilled.
The Court, then delved into the issue whether the interference pursued a legitimate aim. The Government contended, based on Article 74 of the Military Criminal Code, that the conviction pursued a legitimate aim – the conviction of the applicant was intended to safeguard the effectiveness of the army in fulfilling its purpose to protect the Greek society from internal and external threats. Since the applicant did not oppose, ECtHR found that the interference served legitimate aims of protecting national security and public safety.
Lastly, with respect to the issue whether the interference was necessary in a democratic society, the applicant had argued that his conviction for insulting the army had not been necessary for several reasons. Firstly, he relied on the factual context in which he had written the letter. His punishment came as the result of his efforts to improve the status of conscripted soldiers. The army charged him with desertion only after he had refused to serve the penalty (an additional period). This charge was dropped, which made his letter substantiated. Secondly, his words were harsh, but they had to be seen as permissible criticism of the executive branch of the Government. Also, the letter “did not contain any insults directed at any individual”, and the letter was “was not a public document, having been sent only to the applicant’s commanding officer”. The letter became public due to the proceeding brought against him. Finally, the applicant opined that “the penal sanction imposed, namely a term of imprisonment of three months, had been disproportionate.” [p. 16-17].
The Government disagreed because “it [was] necessary to resort to the criminal law to maintain military discipline and maintain the effectiveness and prestige of the armed forces”. Besides, the letter was phrased in insulting terms and contained no specific criticism or allegations of actual violations of the rights of conscripts. Speaking of the method of communication, the Government argued that it was also incorrect to consider the letter a mere private expression of opinions since it had not been delivered privately because the applicant had sent it via a taxi driver. Moreover, the applicant had shown a copy of the letter to a fellow conscript officer. Lastly, Mr. Grigoriades did not ask for a suspended sentence, as he might have done. Hence, the interference was proportionate.
The ECtHR reiterated some of its general remarks on right to freedom of expression enshrined by Article 10 by quoting several paragraphs from the judgment in the case of Vogt v Germany. The relevant remarks are stated below:
(i) Article 10 protects information or ideas that, also, offend, shock, or disturb;
(ii) “The adjective ‘necessary’, implies the existence of a ‘pressing social need’ ”. Even though the Contracting States “have a certain margin of appreciation in assessing whether such a need exists” it is for the ECtHR to give the “final ruling on whether a ‘restriction’ is reconcilable with freedom of expression”;
(iii) The ECtHR is not empowered to replace national courts. Its aim “is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are relevant and sufficient” [para. 44].
With respect to the present case, the ECtHR underscored that Article 10 had not been tailored to “stop at the gates of army barracks” since “[i]t applie[d] to military personnel as to all other persons within the jurisdiction of the Contracting States.” Yet, this does not prevent States from “impos[ing] restrictions on freedom of expression where there is a real threat to military discipline, as the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining it” (Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, App. No. 15153/89 (1994), § 36) [para. 45]. The ECtHR recalled that it was up to States to find the proper balance because such restrictions should not be designed “for the purpose of frustrating the expression of opinions, even if these are directed against the army as an institution” [para. 45].
The ECtHR continued by saying that while it is obvious that the content of the letter “[had] included certain strong and intemperate remarks concerning the armed forces in Greece” those remarks had been made “in the context of a general and lengthy discourse critical of army life and the army as an institution”. The Court insisted that the applicant had not published or disseminated the letter. No one, except two officers, had seen the letter. Additionally, Mr. Grigoriades did not insult any particular person. Thus, the ECtHR concluded that “the objective impact on military discipline [had been] been insignificant” [para. 47].
In conclusion, the ECtHR held that the applicant’s conviction had not been necessary in a democratic society. Accordingly, there was a violation of Article 10.
Regarding Article 7 and the applicant’s allegation that his conviction was not prescribed by law, the Court referred to its rationale on the legality issue within Article 10 and on similar grounds, held that there was no violation of Article 7.
Judges Bernhardt and Wildhaber delivered the first concurring opinion and judge Jambrek delivered the second one. Eight judges dissented in three opinions to the ECtHR’s finding on a violation of Article 10 in this case.
Judges Bernhardt and Wildhaber tackled the question of the vagueness of the law. A potential formula to assess vagueness (and discretion) in subsequent cases was prescribed by them as follows:
“A law that uses general terms or confers a discretion is not in itself inconsistent with the requirement of sufficient precision and foreseeability, provided that the terms used are not too vague and the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against interference” [p. 19].
Another concurring opinion was that of judge Jambrek. He opined that the main reasons for finding a violation of Article 10 were in paragraph 47 of the judgment. Firstly, the letter was a part of a general and lengthy discourse about army life. Secondly, the letter was not published or disseminated to a wider audience. Thirdly, the remarks in the letter did not harm any specific person. The judge elaborated in detail these reasons. First of all, many of the remarks used by the applicant were “opinions” (i.e. subjective attitudes), in contrast to factual claims. Opinions are protected even if they offend or shock. Further on, the judge analyzed the notion of “insult”. He said that the “legal concept of an ‘insult’ protect[ed] mainly personal honour” which implied that “State institutions, and the army in particular, [did] not possess ‘personal honour’ to be protected as a personality right” [para. 3]. Hence, “the legitimate aim of the interference with the applicant’s freedom of expression could hardly be the ‘protection of the rights and freedoms of others’ ”. Judge Jambrek then mentioned the concept of “collective insult” which protected national institutions such as an army. Since defaming the military may harm military discipline, “the army should also be protected against ‘insults’ which aim at degrading its public acceptance and may thereby undermine fulfillment of its functions”. Nevertheless, State institutions, like the army, “should not be shielded from criticism, nor may permissible criticism on relevant issues be prevented by fear of punishment”. On this point, the judge relied on the German case law.
Additionally, Justice Jambrek invoked the U.S. legal logic in the “flag burning” cases (i.e., Street v. New York, 394 U.S. 576 (1969) ; Texas v. Johnson, 491 U.S. 397 (1989) ; United States v. Eichman, 496 U.S. 310 (1990)) – the logic that did not allow for the government to interfere “with the symbolic act of casting contempt upon the American flag”. Such cases were, according to judge Jambrek, analogous to the present case of “collective insult”. Thus, Article 10 protected “symbolic speech” which is “offensive even to the supreme national values”. He also quoted, as an obiter dictum, the rationale from a case U.S., Board of Education v. Barnette, 319 U.S. 624 (1943) in the United States, where it was argued that “the freedom to differ [was] not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance [was] the right to differ as to things that touch the heart of the existing order” [para. 7].
Judge Sir Freeland wrote the first dissenting opinion. Judges Russo Valticos, Loizou, and Morenilla joined him. They relied on the same case as the majority (Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria) to emphasize the importance of the military discipline. In their opinion, the primary purpose of military discipline is to ensure that in all circumstances, including situations of extreme stress, lawful orders from a superior in rank are unquestioningly and immediately carried out by the serviceman to whom they are addressed. The modus operandi of such discipline varies among the States due to different factors, such are “national characteristics and military traditions”. The judges underlined that at the relevant time “the Greek armed forces [had been] apparently in a state of mobilisation as a consequence of circumstances existing in the area” [para. 5].
On the issue of the content of the letter, they believed that, regardless of the applicant’s aim, it was clear that the applicant’s words had questioned “the legitimacy of the army as an institution” and “the extent of his willingness to obey orders.” Hence, the letter’s language had been “the language of insubordination rather than that of permissible criticism”. They believed that it was possible to say that, if the applicant had not been punished, lack of punishment would have encouraged others not to respect discipline. This possibility was important for the dissenters due to “the disclosure of a copy of the letter to a fellow officer and the risk that knowledge of its contents would go further” [para. 7].
Judges Gölcüklü and Pettiti delivered the second dissenting opinion. They emphasized the importance of military discipline and that insulting the army was an offense in every State. They relied on the ECtHR’s position in the case of The Engel and Others v. the Netherlands (1976). Namely, in paragraph 100 of that judgment, the Court stated that “the proper functioning of an army [was] hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline, for example by writings”. Thus, the judges used this passage to argue that it was not “possible to compare the freedom of expression of a citizen who [was] no longer in the army with the more limited freedom of expression of a soldier required to respect rank while doing national service”. On the contrary, they believed that historians are “totally free to criticize the army”.
The judges underlined the potential risk inflicted by the majority opinion since they believed that the judgment could be misunderstood by the Member States. According to them, it is unwise to permit “a soldier or officer who still has military service obligations to publish material presenting military service as a criminal institution, without any risk of the soldier or officer responsible being prosecuted by the military or judicial authorities” [p. 26]
They found that the Grand Chamber had not followed its well established case-law on “precluding any reopening of a national court’s finding of fact where such finding [had not been] contrary to the Convention”. Since the domestic courts found that the letter had been intended for the applicant’s superiors, the ECtHR “misconstrued the letter in holding that it was personal, private and not addressed to the military authorities”. The purpose of the letter had not been to inform the applicant’s superior that the applicant had no intention of performing the additional service period. Thus, the letter was official in nature. The officer who had received the letter “had a duty to bring it to the attention of his superiors”. Finally, speaking of the letter, the judges argued that the fact that the applicant had not published the letter was irrelevant.
In conclusion, they reiterated that the issue of the letter came within the scope of military provisions and, thus, paragraph 2 of Article 10. According to them, “discipline is essential to maintain the authority of the army” and “the army is essential to ensure that democracy is protected from subversion”.
The last dissenting opinion was given by Judge Casadavell. He pointed out that Article 10 enabled people to criticize, but the language should have been “couched in terms that [were] not excessive and strike[d] a fair balance concerning the rights of others, order and morals” [p. 27]. Nevertheless, in the present case criticism reached to the degree of “an insult, and even an outrage, to a State institution”. Lastly, the judge stated that it was “a punishable offence under the ordinary law in most member States of the Council of Europe” to offend State institutions. Thus, the criminal conviction of the applicant was permitted by Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is relevant because it emphasizes that military personnel enjoys the right to freedom of expression. If one does not insult someone but merely criticizes the army as an institution in a private manner, such as the letter to one’s commanding officer, then a criminal conviction of that person will, most probably, lead to a breach of Article 10. Additionally, if a criticism is a part of an ongoing debate about the military as an institution then this is the additional indicator for arguing against an eventual conviction.
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