Ahmet Sadik v. Greece

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF AHMET SADIK v. GREECE

(46/1995/552/638)

JUDGMENT

STRASBOURG

15 November 1996

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1996. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed below. List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare) The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC 's-Gravenhage) SUMMARY (*This summary by the registry does not bind the Court) Judgment delivered by a Chamber Greece - conviction of politician belonging to Muslim community of Western Thrace for disturbing peace during election campaign by distributing leaflets referring to that community as "Turkish" I. Preliminary observation Applicant deceased - widow and children have legitimate moral interest in obtaining ruling that his conviction infringed right to freedom of expression relied on before Convention institutions - definite pecuniary interest under Article 50 of the Convention. Conclusion: applicant's heirs have standing to continue proceedings in his stead (unanimously). II. Government's preliminary objection (non-exhaustion of domestic remedies) Supervision machinery set up by Convention: subsidiary to national human rights protection systems - principle reflected in rule set forth in Article 26 of Convention - reiteration of principles laid down in Court's case-law on question of exhaustion. In present case applicant did not at any time rely on Article10 of Convention, or arguments to same or like effect based on domestic law, in courts dealing with his case, but merely defended himself against charge of disturbing peace contrary to Article 192 of Criminal Code. Conclusion: objection upheld (six votes to three). Court's case-law referred to 18.6.1971, De Wilde, Ooms and Versyp v. Belgium; 6.11.1980, Guzzardi v. Italy; 6.11.1980, Van Oosterwijck v. Belgium; 19.3.1991, Cardot v.France; 23.4.1992, Castells v. Spain; 16.9.1996, Akdivar and Others v. Turkey In the case of Ahmet Sadik v. Greece[fn1] , The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[fn2] , as a Chamber composed of the following judges: Mr R. Ryssdal, President, Mr N. Valticos, Mr S.K. Martens, Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland, Mr A.B. Baka, Mr B. Repik, Mr K. Jungwiert, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 30 March, 30 August and 25October 1996, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 29 May 1995 and by the Government of the Hellenic Republic ("the Government") on 4 July 1995, within the three-month period laid down by Article 32 1 and Article 47 of the Convention. It originated in an application (no. 18877/91) against Greece lodged with the Commission under Article 25 by a Greek national, Mr Sadik Ahmet Sadik, on 11 July 1991. The applicant died on 24 July 1995; his wife, Mrs Isik Ahmet, and his two children, Mr Levent Ahmet and Miss Funda Ahmet, stated that they wished to continue the proceedings. The Commission's request referred to Articles 44 and 48 and to the declaration whereby Greece recognised the compulsory jurisdiction of the Court (Article 46); the Government's application referred to Articles 44 and 48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention. 2. In response to the enquiry made in accordance with Rule33 3(d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule30). 3. The Chamber to be constituted included ex officio MrN.Valticos, the elected judge of Greek nationality (Article43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule21 3(b)). On 8 June 1995, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr S.K. Martens, Mr I. Foighel, Mr J.M. Morenilla, Mr F. Bigi, SirJohnFreeland, Mr B. Repik and Mr K. Jungwiert (Article 43in fine of the Convention and Rule 21 4). Subsequently Mr A.B. Baka, substitute judge, replaced Mr Bigi, who had died (Rules 21 4 and22 1). On 25 August 1995 the Registrar was informed of the applicant's death and later that his widow and children wanted the proceedings to continue and wished to participate in them, retaining the applicant's lawyer as their representative. For practical reasons, Mr Ahmet Sadik will continue to be referred to in this judgment as "the applicant", although Mrs Isik Ahmet and her children are now to be regarded as having this status (see the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 29, 2). 4. As President of the Chamber (Rule21 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules37 1 and 38). The applicant's memorial was received at the registry on 10 January 1996 and the Government's on 11 January. On 30 January the Government filed a number of documents, having been given leave to do so by the President on 14 December 1995. On 12 February the Secretary to the Commission informed the Registrar that the Delegate of the Commission did not intend to submit any written observations. By a letter received on 22 December 1995 Rights International, an American non-governmental organisation, sought leave to submit written observations under Rule 37 2. On 25 January 1996 the President decided not to give it leave to do so. On 6 March 1996, after the time-limit for the submission of written observations by those appearing before the Court had expired, the applicant's lawyer filed at the registry a report by Helsinki Watch published in 1992 following a fact-finding mission carried out by that organisation in Western Thrace. At its preparatory meeting on 27 March 1996 the Court decided to admit this document and the President gave the Government leave to reply, which they did on 30 April 1996. 5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27March 1996. The Court had held a preparatory meeting beforehand. There appeared before the(a) for the Government Mr V. Kondolaimos, Senior Adviser, Legal Council of State, Delegate of the Agent, Mr D. Spinelis, Lecturer, Athens University, Mrs V. Pelekou, Legal Assistant, Legal Council of State, Mrs M. Vondikaki-Telalian, Adviser, Legal Service of the Ministry of Foreign Affairs, Counsel; (b) for the Commission Mr B. Conforti, Delegate; (c) for the applicant Mr T. Akillioglu, avukat (lawyer) at the Ankara Bar and university lecturer, Counsel. The Court heard addresses by Mr Conforti, Mr Akillioglu, MrKondolaimos, Mr Spinelis and Mrs Pelekou. The Government's representative produced certain documents at the hearing, having been invited to do so by the Court. AS TO THE FACTS I. The circumstances of the case 6. Mr Ahmet Sadik, a Greek national of the Muslim faith, was born in 1949 and lived in Komotini (Western Thrace). He was a doctor, publisher of the weekly newspaper Güven("Trust") and a member of the Greek parliament. He died on 24 July 1995 in a road accident near Komotini. A. The background to the case 7. The applicant was the sole candidate of the political party Güven - representing part of the Muslim population of Western Thrace -to win a seat in the parliamentary election of June 1989. As no government emerged from that election, a fresh poll was planned for November 1989 in which the applicant intended to stand as a candidate. 8. On various dates between 16 October and 17 November 1989 MrAhmet Sadik published in the newspaper Güvenand circulated in the region a number of communiqués, including the following:

"TO THE TURCO-MUSLIM ELECTORATE OF THE DEPARTMENT OF RODOPI

In response to the repeated requests of the Turco-Muslim electorate of the department of Rodopi, we, journalist Molla Ismail (of Rodopi), Dr Sadik Ahmet and theologian Ibrahim Serif, have decided to stand in the general election of 5November as members of the independent Güven list. The Turkish community of Western Thrace, especially since 1974, has been through some unhappy experiences at the hands of political parties. At the elections of 18 June, in an upsurge of unity, it placed its trust in the independent Güven list. It asserted its identity and took its destiny into its own hands by electing a member of that list to represent it in parliament. For the elections of 5 November it is equally determined to send to parliament a representative who enjoys its trust.

After the historic victory won on 18 June the Turkish electors of the department of Rodopi never again wish to return to the old parties and live once more the days when they were despondent and crushed.

Moreover, we suffer when we observe the manoeuvres of the other parties, who, in order to win the precious Turco-Muslim vote in Western Thrace, are playing on the fears of the people in our towns and villages. Some who seem to be of our own kind still dare, under the pretext of defending the rights of the Turco-Muslim community in Western Thrace, to call for the votes of our honest, fair-minded fellow citizens. It is painful to see that these adventurers can still walk abroad among us. The only thing the members of the Turco-Muslim community of Western Thrace want is to live in dignity in the country where they were born and have grown up. No force will halt their just and legitimate struggle.

We place all our trust in God first of all, but also in the honest and conscientious Turco-Muslim electorate, who believe in our cause. The Turkish electorate of the department of Rodopi, whose motto is 'one for all and all for one' will express their trust in Güven on 5November and overcome all their adversaries with honour and respect.

..."

The applicant was convicted of an offence on the basis of the above article, a Greek translation of which was read out at his trial in the Rodopi Criminal Court and in the Patras Court of Appeal (see paragraphs 9, 10 and 15 below). In another communiqué he wrote:

"YOUNG PEOPLE! SHOULDER YOUR RESPONSIBILITIES

ON 5 NOVEMBER THE INNOCENT YOUTH WHO HAVE BEEN SUFFERING SINCE THE DAY OF THEIR BIRTH IN WESTERN THRACE WILL AT LAST BE ABLE TO SAY 'NO' TO THE POLITICAL PARTIES WHO ARE MAKING THEM LIVE AN INHUMAN LIFE

YOUNG PEOPLE! UNITY IS STRENGTH! STICK TOGETHER! YOUR VOTE IS AS PRECIOUS AS YOUR HONOUR, BE CAREFUL HOW YOU CAST IT!

THE YOUNG TURKS OF WESTERN THRACE, WHOSE SLOGAN IS 'WE WANT RIGHTS, NOT CHARITY' ARE GOING TO ENFORCE RESPECT FOR THEIR RIGHTS

YOUNG TURK OF WESTERN THRACE

In this community of 150 thousand Turco-Muslims of Western Thrace the highest duty, one which will fill you with honour and pride, falls to you. The date of the fresh general election, 5 November, is approaching.

For 25 to 30 years you have been affected most by the pressure, discrimination and injustice inflicted on the Turkish community of Western Thrace by the leaders who have followed each other at the head of this country.

You have breathed in the fumes of injustice and discrimination since birth.

Your innocent childhood passed by in injustice. You were not able to shout out to the world 'I am a Turkish child'.

In our world, where education and training are so highly developed, your schooling was cut short. You did not even have a schoolbook when ethnic-Greek children were getting a modern education and taking advantage of the cultural and technological developments of their time. You have the necessary intelligence to become a doctor, a lawyer or an engineer ... but this country which you call 'my homeland' has shut the door of study in your face.

You have grown up and become an adult in the midst of these injustices by the law of nature. Because no one could prevent you growing up. Perhaps you are also now married and a father, but you have no home for your dear wife and the children you love. You have just completed your military service but, in this country that you call 'my homeland', the right to buy or build a house is denied you.

As your access to higher education was barred, you learned a trade, although this meant putting up with the constant annoying remarks of your 'Christian boss' (Çorbaci) down through the years. You became a repairer of engines, exhaust pipes or tyres ..., but you still have to fill the pockets of your Christian boss, because you do not have the right to open your own workshop.

When you were born you received your name during the call to prayer; your name appears in the district council's register as Ahmet, Mehmet ... But in your place of work your boss insists on calling you 'Taki, Maki, Saki ...'

With the enthusiasm of youth you leap on a tractor and work in the fields day and night. You would like to drive past in front of your friends on this tractor, but you can't.

Because you are not even thought worthy of permission to use the tractor. You are almost obliged to work your own land by stealth. After working all year long and saving up a bit of money you would like to go for a trip or to travel abroad. But you're uneasy about going away. You are tormented by doubts. You wonder if you'll lose your nationality when you return or have to surrender your passport when you leave.

YOUNG PEOPLE OF WESTERN THRACE!

You young people who came into the world in the midst of all this injustice and for whom a humiliating existence has been mapped out, your day has come!

In the elections of 5 November, teach all those who would lock you into this injustice an unforgettable lesson.

NOBODY DOUBTS THAT YOU WILL GIVE YOUR FULL SUPPORT TO THE INDEPENDENT LIST and in so doing prove that you would rather die than abandon your national and religious roots!

Here and now you must set up CAMPAIGN COMMITTEES in your district or village and make sure that your parents and grandparents are not deceived!

On the day of the elections, up till the time when all the votes have been counted, make sure that all the votes are not wasted by remaining either next to the ballot boxes or outside the polling station. Do not forget for a single second that your vote is as precious as your honour!

THE TURKISH COMMUNITY OF WESTERN THRACE TRUSTS YOU AND IS PROUD OF YOU.

LONG LIVE THE TURKISH AND MUSLIM YOUTH OF WESTERN THRACE!"

9. The applicant was then accused of contravening Articles 162 and 192 of the Criminal Code (see paragraph 20 below). On 18 December 1989 the public prosecutor attached to the Rodopi Criminal Court summoned him to appear in that court on 25January 1990 to stand trial on the following charges:

"[In the second half of] the month of October 1989, in the town of Komotini,

(1) by false information and defamatory declarations about certain candidates, [Mr Ahmet Sadik] deceived the electors in order to induce them to change the way they intended to vote; in particular, he wrote and circulated in the town of Komotini and other places in the department of Rodopi a declaration in the Turkish language ... in which he asserted that the Muslim electors of the department of Rodopi were living every day - that is in the period preceding the general election of 5November 1989 - in an anarchic climate (of terror) fostered by the candidates of the other political parties ... who were going round the different villages of the department of Rodopi trying to win the votes of the Muslim electors ...

(2) at the same time and in the same place he contravened Article 192 of the Criminal Code ...; in particular he wrote and circulated the above-mentioned declaration in which there were frequent repetitions of the words 'Turk', 'Turkish Muslim', 'Turkish Muslim minority of Western Thrace' and 'Turkish community', used to designate the Muslim minority in Thrace; by describing the Muslim minority as 'Turkish' and by calling the Muslims 'Turks' rather than 'Greeks', he provoked and incited the citizens to sow discord among themselves (particularly on the Muslim side) and between them and the other citizens of Komotini, and thus disturbed the public peace ...

Consequently, he has contravened Articles ... 162 and 192 of the Criminal Code."

A second summons, of the same date, directed the appli>