TSIRLIS and KOULOUMPAS v. GREECE
Doc ref: 19233/91;19234/91 • ECHR ID: 001-45799
Document date: March 7, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19233/91
Dimitrios Tsirlis
against
Greece
and
Application No. 19234/91
Timotheos Kouloumpas
against
Greece
REPORT OF THE COMMISSION
(adopted on 7 March 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-12) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 13-17). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 18-62) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 18-53). . . . . . . . . . . . . . . . . . .3
Application No. 19233/91
(paras. 18-36). . . . . . . . . . . . . . . . . . .3
Application No. 19234/91
(paras. 37-53). . . . . . . . . . . . . . . . . . .6
B. Relevant domestic law
(paras. 54-62). . . . . . . . . . . . . . . . . . .8
III. OPINION OF THE COMMISSION
(paras. 63-137). . . . . . . . . . . . . . . . . . . . 11
A. Issues declared admissible
(para. 63). . . . . . . . . . . . . . . . . . . . 11
B. Points at issue
(para. 64). . . . . . . . . . . . . . . . . . . . 11
C. As regards Article 5 para. 1 of the Convention
(paras. 65-77). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 78). . . . . . . . . . . . . . . . . . . . 14
D. As regards Article 5 para. 5 of the Convention
(paras. 79-82). . . . . . . . . . . . . . . . . . 14
CONCLUSION
(para. 83). . . . . . . . . . . . . . . . . . . . 15
E. As regards Article 6 para. 1 of the Convention
(paras. 84-106) . . . . . . . . . . . . . . . . . 15
1. The applicability of Article 6 para. 1 of the Convention
(paras. 85-93). . . . . . . . . . . . . . . . . . 15
TABLE OF CONTENTS
Page
2. Compliance with Article 6 para. 1 of the Convention
(paras. 94-106) . . . . . . . . . . . . . . . . . 17
CONCLUSION
(para. 107) . . . . . . . . . . . . . . . . . . . 19
F. As regards Article 13 of the Convention
(paras. 108-110). . . . . . . . . . . . . . . . . 19
CONCLUSION
(para. 111) . . . . . . . . . . . . . . . . . . . 19
G. As regards Article 14 in conjunction with
Article 9 of the Convention
(paras. 112-119). . . . . . . . . . . . . . . . . 19
CONCLUSION
(para. 120) . . . . . . . . . . . . . . . . . . . 21
H. As regards Article 9 of the Convention
(paras. 121-124). . . . . . . . . . . . . . . . . 21
CONCLUSION
(para. 125) . . . . . . . . . . . . . . . . . . . 22
I. As regards Article 3 of the Convention
(paras. 126-129). . . . . . . . . . . . . . . . . 22
CONCLUSION
(para. 130) . . . . . . . . . . . . . . . . . . . 22
J. Recapitulation
(para. 131-137) . . . . . . . . . . . . . . . . . 23
SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL,
JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI. 24
PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . 25
PARTIALLY DISSENTING OPINION OF MR. G. RESS . . . . . . . . 26
APPENDIX I: DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY
OF THE APPLICATION No. 19233/91. . . . . . . 28
APPENDIX II: DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY
OF THE APPLICATION No. 19234/94. . . . . . . 42
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Greek citizens, both born in 1964 and resident
in Thiva. They were represented before the Commission by
Mr. P. Bitsaxis, an attorney at law practising in Athens.
3. The applications are directed against Greece. The respondent
Government were represented by their Agent, Mr. L. Papidas, President
of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),
Mr. Ph. Georgakopoulos, Deputy Member (Paredros) of the Legal Advisory
Council of the State, and Mrs. Ch. Sitara, Assistant Member (Dikastikos
Antiprosopos) of the Legal Advisory Council of the State.
4. The case concerns the military authorities' refusal to recognise
that the applicants were ministers of a known religion, the applicants'
imprisonment following a first instance conviction which was quashed
on appeal, the failure of the military courts to grant the applicants
compensation for the period they spent in detention and the fairness
of the proceedings relating to the applicants' compensation claim. The
applicants invoke Articles 3, 5, 6, 9, 13 and 14 of the Convention.
B. The proceedings
5. Both applications were introduced on 26 November 1991 and
registered on 19 December 1991.
6. On 30 August 1993 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
applications to the respondent Government and to invite the parties to
submit written observations on their admissibility and merits.
7. The Government's observations were submitted on 13 December 1993
after an extension of the time-limit fixed for this purpose. The
applicants replied on 24 February 1994.
8. On 29 November 1994 the Commission decided to invite the
respondent Government to submit additional observations on both
applicants' complaints under Articles 3, 9 and 14 of the Convention.
9. The Government's additional observations were submitted on
27 February 1995. The applicants replied on 2 May 1995.
10. On 4 September 1995 the Commission declared inadmissible the
applicants' complaints under Article 5 para. 1 (c) and 7 of the
Convention. It declared admissible the remainder of the applications.
It also decided to join the two applications.
11. The text of the Commission's decision on admissibility was sent
to the parties on 14 September 1995 and they were invited to submit
such further information or observations on the merits as they wished.
No further submissions were received from the parties.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, 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
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
14. The text of this Report was adopted on 7 March 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
15. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
16. The Commission's decision on the admissibility of the first
application is attached hereto as Appendix I and the Commission's
decision on the admissibility of the second application is attached
hereto as Appendix II.
17. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
Application No. 19233/91
18. On 4 November 1987 the applicant was appointed religious minister
by the Central Congregation of the Christian Jehovah's Witnesses of
Greece. He was given the authority, inter alia, to perform wedding
ceremonies between persons of this religion, in accordance with
Article 1367 of the Civil Code, and to notify such weddings to the
competent registry offices. By letter of 20 November 1987 the
Prefecture of Eastern Attica notified the registry offices of Eastern
Attica of this appointment.
19. On 13 February 1990 the applicant lodged an application with the
Recruitment Office of Eastern Attica to be exempted from military
service, in accordance with Article 5 of Law 1763/1988 which grants
such a right to all ministers of "known religions". On 28 February 1990
the Eastern Attica Military Office rejected the application on the
ground that Jehovah's Witnesses were not a "known religion". The
applicant lodged immediately an administrative appeal with the Director
for Recruitment of the General Headquarters for National Defence.
20. While his administrative appeal was pending, the applicant was
ordered by the Recruitment Office of Eastern Attica to report for duty
at a military training centre in Rethimno on 6 March 1990. The
applicant presented himself at the Rethimno centre, as ordered, but
refused to enlist, invoking his status of a minister of a known
religion. More in particular, the applicant refused to wear a military
uniform as ordered by a military officer. He was arrested, charged with
insubordination and placed in detention on remand.
21. On 22 March 1990 the Director for Recruitment of the General
Headquarters for National Defence rejected the applicant's appeal
against the decision of the Eastern Attica Recruitment Office, on the
ground that Jehovah's Witnesses were not a "known religion".
22. On 30 April 1990 the Permanent Military Court (Stratodikio) of
Chania, composed of two officers with legal training and three other
officers, examined the criminal charges against the applicant. The
applicant claimed that he was innocent on the ground that he was a
minister of a known religion exempted from military service. At the end
of the hearing the president of the court put the following question
to its members:
"Is (the applicant), who is a Jehovah's Witness, guilty of
having refused to obey, while serving in the military, an
order given by his commanding officer to perform a certain
duty, i.e. to pick up clothing articles necessary for his
training as an unarmed soldier, claiming that the religious
convictions of Jehovah's Witnesses do not permit him to do
so?"
The court, unanimously, answered the question in the affirmative, found
the applicant guilty of insubordination and sentenced him to four
years' imprisonment from which it deducted the period the applicant had
spent in provisional detention.
23. On 4 May 1990 the applicant appealed against this decision before
the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).
24. On 21 May 1990 the applicant lodged before the Council of State
(Simvulio tis Epikratias) an action for the annulment of the decision
of 22 March 1990 of the Director for Recruitment of the General
Headquarters for National Defence.
25. On 19 June 1990 the applicant's appeal came up for hearing before
the Courts-Martial Appeal Court, being a court composed of five
military officers with legal training. The defence requested the
applicant's acquittal or, alternatively, the adjournment of the hearing
pending the decision of the Council of State on his appeal. The defence
also requested the applicant's provisional release under Article 352
para. 3 of the Code of Criminal Procedure. The court decided to adjourn
the hearing to a date which would be fixed by the Public Prosecutor
(Epitropos) in order to enable the latter to produce a copy of the
applicant's original application for an exemption and of the final
decision thereon of the Director for Recruitment of the General
Headquarters for National Defence. It further considered that the
applicant should not be provisionally released under Article 352
para. 3 of the Code of Criminal Procedure.
26. On 12 September 1990 the applicant requested the Council of State
to order the suspension of the execution of the decision of the
Director for Recruitment of the General Headquarters for National
Defence refusing to exempt him from military service.
27. On 29 November 1990 the applicant's appeal came up again for
hearing before the Courts-Martial Appeal Court. In the meantime the
Fourth Chamber of the Council of State had issued decision No. 3601/90
in which the right of Jehovah's Witnesses religious ministers to be
exempted from military service was expressly upheld. The Public
Prosecutor requested the adjournment of the hearing to a date to be
fixed by himself with a view to obtaining the opinion of the Director
for Recruitment of the General Headquarters for National Defence on the
following matter:
"Is the accused under an obligation to perform military
service in the light of decision No. 3601/90 of the Fourth
Chamber of the Council of State which quashed a decision of
the Director for Recruitment of the General Headquarters
for National Defence which had rejected an application for
exemption from military service lodged by another accused
person who was a religious minister of the Central
Congregation of the Christian Jehovah's Witnesses .... ?"
28. The Public Prosecutor further proposed that the applicant's
provisional detention should be continued. The defence agreed to the
adjournment of the hearing. It further considered that the question of
the applicant's provisional release "should be left to the judgment of
the court". The court granted the prosecution's request and agreed with
its proposal that the applicant should not be provisionally released
under Article 352 para. 3 of the Code of Criminal Procedure.
29. On 16 April 1991 the applicant's appeal came up for hearing for
the third time before the Courts-Martial Appeal Court. A hearing had
been fixed on the same day for the action the applicant had lodged
before the Council of State for the annulment of the decision of
22 March 1990 of the Director for Recruitment of the General
Headquarters for National Defence.
30. The Public Prosecutor of the Courts-Martial Appeal Court proposed
the adjournment of the hearing of the applicant's criminal appeal,
pending the decision of the Council of State. He also proposed the
continuation of the applicant's detention. The defence considered that
the first matter should be left to the judgment of the court. It
requested, however, the applicant's provisional release.
31. The court decided to adjourn the hearing to a date to be fixed
by the Public Prosecutor in order to obtain the opinion of the Director
for Recruitment of the General Headquarters for National Defence on the
following question: "Was the accused exempted from the obligation to
report for duty, in the light of his purported status of a religious
minister?" It further ordered the continuation of the applicant's
provisional detention.
32. On 24 April 1991 the Council of State annulled the decision of
the Director for Recruitment of the General Headquarters for National
Defence by which the applicant's application for exemption had been
refused, on the ground that Jehovah's Witnesses are a known religion
and the administration had not challenged the evidence produced by the
applicant that he was a minister of that religion.
33. On 8 May 1991 a three-member committee of the Council of State
decided that, in the circumstances, there was no need to pronounce on
the applicant's petition for the suspension of the execution of the
above-mentioned decision of the Director for Recruitment of the General
Headquarters for National Defence.
34. On 30 May 1991 the Courts-Martial Appeal Court, composed of five
military judges, examined the applicant's appeal against the judgment
of 30 April 1990 of the Permanent Military Court of Chania. The issue
before the court, as formulated by its president, was the following:
"Is (the applicant), a member of the religious sect of
Jehovah's Witnesses, guilty of having refused to obey,
while serving in the military, an order given by his
commanding officer to perform a certain duty, i.e. to pick
up clothing articles necessary for his training as an
unarmed soldier, claiming that the religious convictions of
Jehovah's Witnesses do not permit him to do so?"
35. Having heard the evidence and the submissions of the parties on
the question of the applicant's guilt, the court withdrew for
deliberations. After the deliberations the president announced the
verdict. The applicant was acquitted, by three votes to two, on the
ground that "there was no act". The dissenting judges considered that
"the accused (was) not a religious minister". The following order was
joined to and read out together with the court's verdict: "The State
is under no obligation to compensate the applicant for his detention
between 6 March 1990 and 29 May 1991, because this detention was due
to the applicant's gross negligence".
36. The applicant was immediately released from prison and was
provisionally discharged from the armed forces on the basis that he was
"a religious minister".
Application No. 19234/91
37. On 4 November 1987 the applicant was appointed religious minister
by the Central Congregation of the Christian Jehovah's Witnesses of
Greece. He was given the authority, inter alia, to perform wedding
ceremonies between persons of this religion, in accordance with
Article 1367 of the Civil Code, and to notify such weddings to the
competent registry offices. By letter of 20 November 1987 the
Prefecture of Eastern Attica notified the registry offices of Eastern
Attica of this appointment.
38. On 29 November 1989 the applicant lodged an application with the
Recruitment Office of Patras to be exempted from military service, in
accordance with Article 5 of Law 1763/1988 which grants such a right
to all ministers of "known religions". On 1 March 1990 the Patras
Recruitment Office rejected the application on the ground that
Jehovah's Witnesses were not a "known religion". The applicant lodged
immediately an administrative appeal to the Director for Recruitment
of the General Headquarters for National Defence.
39. While his administrative appeal was pending, the applicant was
ordered by the Recruitment Office of Patras to report for duty at a
military training centre in Sparta on 6 March 1990. The applicant
presented himself at the Sparta centre, as ordered, but refused to
enlist, invoking his status of a minister of a known religion. More in
particular, the applicant refused to wear a military uniform as ordered
by a military officer. He was arrested, charged with insubordination
and placed in detention on remand.
40. On 6 April 1990 the Director for Recruitment of the General
Headquarters for National Defence rejected the applicant's appeal
against the decision of the Patras Recruitment Office on the ground
that Jehovah's Witnesses were not a known religion.
41. On 21 May 1990 the applicant lodged before the Council of State
(Simvulio tis Epikratias) an action for the annulment of the decision
of 6 April 1990 of the Director for Recruitment of the General
Headquarters for National Defence.
42. On 30 May 1990 the Permanent Military Court (Stratodikio) of
Athens, composed of one officer with legal training and four other
officers, examined the criminal charges against the applicant. The
applicant claimed that he was innocent on the gerund that he was a
minister of a known religion exempted form military service. At the end
of the hearing the president of the court put the following question
to its members:
"Is (the applicant), who is a Jehovah's Witness, guilty of
having refused to obey, while serving in the military, an
order given by his commanding officer to perform a certain
duty, i.e. to pick up clothing articles necessary for his
training as an unarmed soldier, claiming that the religious
convictions of Jehovah's Witnesses do not permit him to do
so?"
The court, unanimously, answered the question in the affirmative, found
the applicant guilty of insubordination and sentenced him to four
years' imprisonment from which it deducted the period the applicant had
spent in provisional detention.
43. On 1 June 1990 the applicant appealed against this decision
before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).
44. On 12 July 1990 the applicant's appeal came up for hearing before
the Courts-Martial Appeal Court, being a court composed of five
officers with legal training. The defence requested the applicant's
acquittal or, alternatively, the adjournment of the hearing pending the
decision of the Council of State on his appeal. The court decided to
adjourn the hearing to a date which would be fixed by the Public
Prosecutor (Epitropos) in order to enable the latter to produce copies
of certain documents of the Ministry of Education and the Holy Synod
of the Orthodox Church of Greece which had been relied on by the army
authorities to refuse the applicant's application for exemption from
military service. The court further agreed with the view of both the
prosecution and the defence that the applicant should not be
provisionally released under Article 352 para. 3 of the Code of
Criminal Procedure.
45. On 12 September 1990 the applicant requested the Council of State
to order the suspension of the execution of the decision of the
Director for Recruitment of the General Headquarters for National
Defence refusing to exempt him from military service.
46. On 27 November 1990 the applicant's appeal came up again for
hearing before the Courts-Martial Appeal Court. In the meantime the
Fourth Chamber of the Council of State had issued decision No. 3601/90
in which the right of Jehovah's Witnesses religious ministers to be
exempted from military service was expressly upheld. The Public
Prosecutor requested the adjournment of the hearing to a date to be
fixed by himself with a view to obtaining the opinion of the Director
for Recruitment of the General Headquarters for National Defence on the
following matter:
"Is the accused under an obligation to perform military
service in the light of decision No. 3601/90 of the Fourth
Chamber of the Council of State which quashed a decision of
the Director for Recruitment of the General Headquarters
for National Defence which had rejected an application for
exemption from military service lodged by another accused
person who was a religious minister of the Central
Congregation of the Christian Jehovah's Witnesses ... ?"
47. The Public Prosecutor further proposed that the applicant's
provisional detention should be continued. The defence requested either
the continuation of the proceedings or the adjournment of the hearing
to a date fixed by the court. It also requested the applicant's
provisional release. The court granted the prosecution's request and
agreed with its proposal that the applicant should not be released
provisionally under Article 352 para. 3 of the Code of Criminal
Procedure.
48. On 7 March 1991 the applicant's appeal came up for hearing for
the third time before the Courts-Martial Appeal Court. The Public
Prosecutor proposed the adjournment of the hearing on the ground that
the Director for Recruitment of the General Headquarters for National
Defence should give his opinion on the following matter: "Is the
accused already exempted from the obligation to perform military
service in view of the action he has lodged with the Council of State?"
He also proposed the continuation of the applicant's detention. The
court accepted both proposals, despite the fact that they had been
opposed by the defence.
49. On 24 April 1991 the Council of State annulled the decision of
the General Headquarters for National Defence by which the applicant's
application for exemption had been refused, on the ground that
Jehovah's Witnesses are a known religion and the administration had not
challenged the evidence produced by the applicant that he was a
minister of that religion.
50. On 8 May 1991 a three-member committee of the Council of State
decided that, in the circumstances, there was no need to pronounce on
the applicant's petition for the suspension of the execution of the
above-mentioned decision of the General Headquarters for National
Defence.
51. On 29 May 1991 the Courts-Martial Appeal Court, composed of five
military judges, examined the applicant's appeal against the judgment
of 30 May 1990 of the Permanent Military Court of Athens. The issue
before the court, as formulated by its president, was the following:
"Is (the applicant), a member of the religious sect of
Jehovah's Witnesses, guilty of having refused to obey,
while serving in the military, an order given by his
commanding officer to perform a certain duty, i.e. to pick
up clothing articles necessary for his training as an
unarmed soldier, claiming that the religious convictions of
Jehovah's Witnesses do not permit him to do so?"
52. Having heard the evidence and the submissions of the parties on
the question of the applicant's guilt, the court withdrew for
deliberations. After the deliberations the president announced the
verdict. The applicant was acquitted, by three votes to two, on the
ground that "there was no act". The dissenting judges considered that
"the accused (was) not a religious minister". The following order was
joined to and read out together with the court's verdict: "The State
is under no obligation to compensate the applicant for his detention
between 6 March 1990 and 29 May 1991, because this detention was due
to the applicant's gross negligence".
53. The applicant was immediately released from prison and was
provisionally discharged from the armed forces on the basis that he was
"a religious minister".
B. Relevant domestic law
54. Article 5 of Law 1763/1988 exempts all ministers of "known
religions" from military service.
55. The Council of State has repeatedly considered that Jehovah's
Witnesses are a "known" religion, in that their beliefs and manner of
worship are known and not secret (decisions Nos. 2105 and 2106/75,
4635/77, 2484/80, 4620/85, 790/86 and 3533/86). In its decision
No. 3601/90 the Council of State expressly upheld the right of
Jehovah's Witnesses religious ministers to be exempted from military
service.
56. Article 70 of the Army Criminal Code provides the following:
"A member of the armed forces who refuses .... to obey an
order by his superior to perform one of his duties is
punished ...".
57. On 16 March 1992 the Permanent Military Court of Athens
considered that a Jehovah's Witnesses religious minister who had
refused to pick up military clothing when first called upon to enlist
in the army was not guilty of insubordination. The court considered
that here had been no act of insubordination because he had no
obligation to perform military service being a minister of a known
religion.
58. Article 303A para. 2 of the Army Criminal Code provides the
following:
"In all cases, even if the investigation has been concluded
and until the final decision of the first instance court,
the duration of the provisional detention of a person
accused of felony cannot exceed twelve months. In very
exceptional cases, the above upper limit may be extended by
up to six months by decision of the indictments' chamber
..."
59. Article 407 para. 1 of the Army Criminal Code provides the
following:
"The lodging of an appeal, which complies with the
requirements of law, suspends the enforcement of the
relevant court decision only insofar as the latter imposes
the penalties of death, cashiering and reduction in or
falling from rank. A person who has received a penalty not
exceeding one year's imprisonment may apply ... for the
suspension of the enforcement of the relevant court
decision, pending the outcome of his appeal".
60. Article 434 of the Army Criminal Code provides that, if the Army
Criminal Code does not regulate a procedural issue, the Code of
Criminal Procedure applies.
61. Article 352 para. 3 of the Code of Criminal Procedure provides
the following:
"When the hearing is adjourned ...., the court may order,
..., the provisional release of the accused ...".
62. The Code of Criminal Procedure provides as follows:
Article 533 para. 2
"Persons who have been detained on remand and subsequently
acquitted ... have the right to request compensation ...,
if it has been established in the proceedings that they did
not commit the criminal offence for which they have been
detained on remand ... A person who has been detained
following conviction by (a) court should be considered for
the purposes of this article to be a person who has been
detained on remand, if his conviction is quashed following
an appeal."
Article 535 para. 1
"The State does not have any obligation to compensate a
person who ... has been detained on remand if the latter,
intentionally or by gross negligence, was responsible for
his own detention."
Article 536 paras. 1 and 2
"Upon an application submitted orally by the person who has
been acquitted, the court which heard the case shall decide
on the State's obligation to pay compensation in a separate
decision issued at the same time as the verdict. However,
the court may also issue such a decision proprio motu ...
The decision regarding the obligation of the State to pay
compensation cannot be challenged separately; it is,
however, quashed when the decision on the principal issue
of the criminal trial is reversed."
Article 537 paras. 1 and 2
"The person who has suffered prejudice may request
compensation at a later stage before the same court.
In these circumstances, the application must be submitted
to the public prosecutor of this court strictly within
forty-eight hours from the pronouncement of the judgment in
open court."
Article 539 para. 1
"After it has been decided that the State must pay
compensation, the person entitled thereto may bring his
claim before the civil courts, which may not re-examine the
existence of the State's obligation."
Article 540 para. 1
"Persons who have been unfairly ... detained on remand must
be compensated for any material prejudice they have
suffered as a result of their ... detention. They must also
be compensated for moral damage ...".
III. OPINION OF THE COMMISSION
A. Issues declared admissible
63. The Commission has declared admissible the applicants' complaints
concerning the lawfulness of their detention after conviction; the
refusal of the military court of appeal to grant them compensation in
respect of their detention without a hearing; inhuman and degrading
treatment; violations of their freedom of religion; and discrimination.
It also declared admissible the issue arising from the manner in which
the decisions of the appeal court on the applicants' entitlement to
compensation were reasoned.
B. Points at issue
64. The issues to be determined are the following:
- Did the applicants' detention after conviction at first instance
constitute a violation of Article 5 para. 1 (Art. 5-1) of the
Convention?
- Did the failure of the military court of appeal to grant the
applicants compensation for the period they spent in detention
amount to a violation of Article 5 para. 5 (Art. 5-5) of the
Convention?
- Did the military court's refusal of compensation give rise to a
violation of the applicants' right to a fair hearing under
Article 6 para. 1 (Art. 6-1) of the Convention?
- Did the applicants have an effective remedy under Article 13
(Art. 13) of the Convention for the alleged violation of their
right to a fair hearing?
- Were the applicants subjected to discrimination in the enjoyment
of their right to freedom of religion contrary to Article 14 in
conjunction with Article 9 (Art. 14+9) of the Convention?
- Was there a violation of the applicants' right to freedom of
religion under Article 9 (Art. 9) of the Convention?
- Were the applicants subjected to inhuman and degrading treatment
contrary to Article 3 (Art. 3) of the Convention?
C. As regards Article 5 para. 1 (Art. 5-1) of the Convention
65. Article 5 para. 1 (Art. 5-1) of the Convention provides the
following:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after
conviction by a competent court ......."
66. The first applicant complains that his detention between
30 April 1990 and 30 May 1991 was not "lawful" within the meaning of
Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. The same
complaint is raised by the second applicant in respect of his detention
between 30 May 1990 and 29 May 1991. The applicants submit that their
convictions by the Permanent Military Courts of Chania and Athens were
"totally arbitrary" and "not founded on the law", since it was clear
from the outset of the proceedings that they were not liable for
military service. Contrary to what the respondent Government argue,
their convictions were the direct result of the refusal of the military
courts to abide, initially, by the earlier case-law of the Council of
State which recognised the status of Jehovah's Witnesses as a "known
religion" and, later, by decision No. 3601/90 of the Council of State
which expressly affirmed the right of the religious ministers of
Jehovah's Witnesses to be exempted from military service.
67. The Government submit that there was no violation of Article 5
para. 1 (a) (Art. 5-1,-a). The applicants were detained because they
were convicted by competent courts. The offence of insubordination is
committed when a member of the armed forces refuses to comply with an
order given by one of his hierarchical superiors. The order does not
have to be lawful. The applicants committed the offence when they
refused to obey the order to wear a military uniform. The military
courts which convicted them could not take into account any other facts
or considerations.
68. The Commission notes that the appeal court, when adjourning the
examination of the applicants' appeals, considered the possibility of
ordering the applicants' release under Article 352 para. 3 of the Code
of Criminal Procedure, which makes reference to persons detained on
remand. Nevertheless, the Commission is satisfied that, in accordance
with domestic law, in proceedings before military courts the accused's
provisional detention is terminated upon pronouncement of the decision
of the first instance court. This is not contested by the respondent
Government who submit that the basis under domestic law for the first
applicant's detention between 30 April 1990 and 30 May 1991 and for
the second applicant's detention between 30 May 1990 and 29 May 1991
was their first instance conviction for insubordination. It follows
that the "lawfulness" of the above-mentioned periods of detention must
be examined under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
69. The Commission further notes that both applicants' convictions
were quashed on appeal and recalls in this connection that it has held
that a national court's decision setting aside a conviction does not
retroactively affect under Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention the "lawfulness" of the detention following that conviction
(see Krzycki v. FRG, Comm. Report 9.3.78, D.R. 13 p. 57, with further
references).
The Commission has also held that a person's detention may be "lawful"
even if the court which convicted this person committed errors in
applying domestic law (ibid). However, it has not excluded that there
might be cases where a different conclusion is warranted (see
No. 6694/74, Dec. 1.3.77, D.R. 8 p. 73).
70. Moreover, in accordance with the case-law of the European Court
of Human Rights, "if detention is to be lawful .... it must essentially
comply with national law and the substantive and procedural rules
thereof (see, in the context of Article 5 para. 1 (e) (Art. 5-1,-e),
Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A
no. 244, p. 21, para. 63; similar criteria were applied to detention
within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court
H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 22, para.
41). Moreover, "the Convention imposes requirements over and above the
substantive and procedural rules of national law in ascertaining the
compatibility of deprivation of liberty with Article 5 (Art. 5), namely
that the individual
should be protected from arbitrariness" (see, in the context of
Article 5 para. 1 (a) and (b) (Art. 5-1,a,-b), Benham v. United
Kingdom, Comm. Report 29.11.94, para. 49, unpublished, with reference
to Eur. Court H.R., Van der Leer judgment of 21 February 1990, Series A
no. 170, p. 12, para. 22).
71. The Courts-Martial Appeal Court did not make a formal finding
that the applicants' detention following their first instance
convictions was unlawful. As a result, the Commission must examine
itself the applicants' claim that their convictions were arbitrary and
unfounded, because they could not have committed the offence of
insubordination since they were not liable for military service. The
Commission notes that Article 5 of Law 1763/1988 exempts all ministers
of "known" religions from military service. The applicants claim that
the first instance courts clearly misconstrued the above provision when
failing to apply it in their case. However, before examining that
claim, the Commission must address the question whether the applicants'
liability for military service was a factor to be taken into
consideration in the examination of the charges for insubordination.
72. The Commission notes in this connection that the decisions of the
first instance military courts which convicted the applicants did not
contain any reasons. However, the court of appeal repeatedly adjourned
the examination of the applicants' appeals invoking a variety of
reasons all of which, however, related to the applicants' liability to
perform military service. Having done that, the court of appeal
hastened to pronounce the applicants' acquittal immediately after the
delivery of the judgments of the Council of State which annulled the
decisions of the Director for Recruitment of the General Headquarters
for National Defence by which the applicants' applications for
exemption had been refused. The reasons for annulling the above-
mentioned decisions were that Jehovah's Witnesses were a "known
religion" and the administration had not challenged the evidence
produced by the applicants and showing that they were ministers of that
religion. Finally, the dissenting judges of the court of appeal
considered that the applicants should not have been acquitted because
"they were not religious ministers".
73. On the basis of all the above, the Commission considers that the
question of the applicants' liability to perform military service was
central for their criminal responsibility for insubordination. It is
in this light that the appeal court's finding that the applicants were
innocent because "there was no act" must be understood. When convicting
the applicants the first instance military courts must, therefore, have
implicitly established that the applicants were not ministers of a
"known religion" and were, therefore, liable for military service.
74. In considering that the applicants were liable to perform
military service the first instance military courts disregarded the
applicants' appointment as religious ministers by the Central
Congregation of the Christian Jehovah's Witnesses of Greece. This was,
however, an incontrovertible fact of which they had been made aware.
Moreover, all other State authorities had officially taken note of this
appointment and were prepared to draw the appropriate legal
consequences.
75. Furthermore, the military courts ignored a series of decisions
of the Council of State to the effect that Jehovah's Witnesses are a
"known religion" preceding the enactment of Law 1763/1988. Although the
Council of State has no competence to examine appeals against decisions
of military courts, it is the highest administrative court in Greece.
As a result, its pronouncements on issues concerning the general
interpretation of a statute carry particular weight (see, mutatis
mutandis, Eur. Court H.R., Holy Monasteries judgment of
9 December 1994, Series A no. 301, p. 29, para. 51). It is precisely
on the above-mentioned decisions of the Council of State that the
European Court of Human Rights relied to conclude that Jehovah's
Witnesses generally enjoy the status of a "known religion" in Greece
(Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A no. 260,
p. 18, para. 32). Moreover, the Council of State had exclusive
competence to examine the legality of the very acts which brought the
applicants within the jurisdiction of the military courts, i.e. the
decisions of 22 March 1990 and 6 April 1990 of the Director for
Recruitment of the General Headquarters of National Defence to the
effect that the applicants were liable to perform military service
because Jehovah's Witnesses were not a "known religion".
76. In deciding to ignore the applicants' appointment and the
decisions of the Council of State, the first instance military courts
clearly misconstrued Article 5 of Law 1763/1988, which exempts all
ministers of "known" religions from military service. The Commission
notes in this connection that the aim of the above-mentioned provision
is to protect religious groups in the practice of their beliefs.
77. The Commission reaffirms that it is not competent to deal with
applications alleging that errors of law have been committed by
domestic courts, except where it considers that such errors involve a
violation of a right or freedom set out in the Convention (No. 458/59,
Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,
Collection 43, p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).
However, in the light of what is stated above, it has been established
that the applicants' conviction for insubordination had clearly no
basis in domestic law. As a result, the detention of the first
applicant between 30 April 1990 and 30 May 1991 and of the second
applicant between 30 May 1990 and 29 May 1991 cannot be considered to
be "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a)
of the Convention.
CONCLUSION
78. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention.
D. As regards Article 5 para. 5 (Art. 5-5) of the Convention
79. Article 5 para. 5 (Art. 5-5) of the Convention provides the
following:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have
an enforceable right to compensation."
80. The applicants complain that they did not receive compensation,
although they had been unlawfully detained.
81. The Government submit that the applicants' detention was lawful
under Article 5 para. 1 (Art. 5-1) of the Convention. In any event the
applicants were responsible for their detention, because they did not
take timely action to obtain their exemption from military service.
Although they both became religious ministers in November 1987, the
first applicant did not apply for exemption before February 1990 and
the second applicant not before November 1989.
82. The Commission has established that the detention of the first
applicant between 30 April 1990 and 30 May 1991 and the detention of
the second applicant between 30 May 1990 and 29 May 1991 were unlawful.
However, on 30 May 1991 and 29 May 1991 respectively the Courts-Martial
Appeal Court considered that the applicants were not entitled to
compensation. It follows that Article 5 para. 5 (Art. 5-5) of the
Convention has been violated.
CONCLUSION
83. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 5 (Art. 5-5) of the Convention.
E. As regards Article 6 para. 1 (Art. 6-1) of the Convention
84. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations
.... everyone is entitled to a fair .... hearing .... by a
.... tribunal .... ."
1. The applicability of Article 6 para. 1 (Art. 6-1) of the
Convention
85. The applicants submit that the proceedings on their entitlement
to compensation in respect of their detention following their first
instance convictions involved a determination of their civil rights.
They argue that the rules governing compensation in respect of
detention following a conviction which was overturned on appeal are
nothing else than the application of the general principles of civil
liability in the particular context. Several elements point in this
direction. Once the obligation of the State to compensate is recognised
by the criminal court, it is a civil court which decides on the amount
of compensation; the detainee's claim may be transferred, attached and
inherited; it is subject to prescription; the detainee is compensated
in respect of pecuniary and non-pecuniary damage; persons depending on
the detainee may sue as well; the State may in turn sue the persons
who, acting illegally, became responsible for the detention.
86. The Government submit that Article 6 (Art. 6) of the Convention
does not apply to the proceedings in question. The applicants'
entitlement to compensation was not decided in accordance with the
legal rules which govern the civil liability of the State in general,
but in accordance with a special set of rules applying exclusively to
detention ordered in the context of a criminal trial. In such cases
compensation is granted independently of the illegal character of the
detention and of the guilt of the State organs involved. Furthermore,
the applicable rules are of a public law character and the right to
liberty is not a civil right within the meaning of Article 6 (Art. 6)
of the Convention.
87. The Commission recalls that Article 6 para. 1 (Art. 6-1) extends
to "disputes" (contestations) over a "right" which can be said, at
least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of its
exercise; and, finally, the "result" of the proceedings must be
"directly decisive" for the right in question (see Eur. Court H.R.,
Zander judgment of 25 November 1993, Series A no. 279-B, p. 38,
para. 22).
88. As regards the question whether a right is of a "civil"
character, the Commission recalls that the concept of "civil rights and
obligations" is not to be interpreted solely by reference to the
respondent State's domestic law and that Article 6 para. 1 (Art. 6-1)
applies irrespective of the status of the parties, as well as of the
character of the legislation which governs how the dispute is to be
determined and the character of the authority which is invested with
jurisdiction in the matter (Eur. Court H.R., Baraona judgment of
8 July 1987, Series A no. 122, p. 17-18, para. 42). For a right to be
a "civil right" it is sufficient that the action is pecuniary in nature
and is founded on an alleged infringement of rights which are likewise
pecuniary rights (Eur. Court H.R., Éditions Périscope judgment of 26
March 1992, Series A no. 234, p. 66, para. 40).
89. The Commission considers that, although the applicants never
asserted their claims before the competent military courts, it cannot
be excluded that there was a "dispute", since the applicants affirm
that they would have applied for compensation if they had not been
prevented from doing so by the Courts-Martial Appeal Court on
30 May 1991 and 29 May 1991 respectively.
90. The Commission also considers that the applicants would have had
a "right" under domestic law to be compensated in respect of the period
they spent in detention following conviction at first instance if the
Courts-Martial Appeal Court had not found that their detention had been
due to their gross negligence. This transpires clearly from the
relevant provisions of the Code of Criminal Procedure. Thus,
Article 533 para. 2 of the Code of Criminal Procedure provides that
persons who have been detained on remand and subsequently acquitted
have the "right" to request compensation. Moreover, Article 535 para. 1
provides that the State does not have any "obligation" to compensate
a person who has been detained on remand if the latter, intentionally
or by gross negligence, was responsible for his own detention. It
follows that the granting of compensation did not depend on the
discretion of the military courts (see, a contrario, Eur. Court H.R.,
Masson and Van Zon judgment of 28 September 1995, to be published in
Series A no. 327, paras. 51-52).
91. The Commission also notes that under Article 539 para. 1 of the
Code of Criminal Procedure the military court of appeal had the power
conclusively to decide whether the applicants were in principle
entitled to compensation. As a result, although the applicants would
have been required to institute further proceedings before the civil
courts if the military court had issued a decision in their favour, the
outcome of the proceedings before the military court was directly
decisive for the applicants' right to compensation. It follows that,
by refusing to grant the applicants compensation on 30 May 1991 and
29 May 1991, the Courts-Martial Appeal Court "determined" a "right"
which could arguably be said to be recognised under domestic law.
92. Moreover, the decision taken by the above court on the
applicants' right of compensation under Article 533 et seq. of the Code
of Criminal Procedure concerned pecuniary and non-pecuniary damages
resulting from detention following convictions at first instance, which
were overturned on appeal. Therefore, the right at issue was a "civil
right" within the meaning of Article 6 (Art. 6) of the Convention,
notwithstanding the origin of the dispute and the fact that a criminal
court had jurisdiction (see, mutatis mutandis, Éditions Périscope
judgment, loc. cit.; A.M. and J.v.Z. v. the Netherlands, Comm. Report
4.7.94, para. 53).
93. For these reasons, the Commission considers that, by refusing to
grant the applicants compensation in its decisions of 30 May 1991 and
29 May 1991, the Courts-Martial Appeal Court "determined" a "civil
right" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
94. The applicants complain that the military court refused them
compensation without hearing them. They submit that the Code of
Criminal Procedure provides that an acquitted person may present his
claim for compensation at the latest 48 hours after the decision of the
criminal court. In the particular circumstances, the applicants were
effectively prevented by the military court from exercising their
rights. The question of their entitlement to compensation was examined
proprio motu in the course of the court's deliberations on the question
of their guilt. The applicants had not and could not have been heard
at this stage of the proceedings on the issue of compensation. The
court, nevertheless, hastened to join its negative decisions on this
issue to its verdicts on the merits which it pronounced immediately
after it had concluded its deliberations. These decisions were final.
95. The Government submit that the applicants had ample opportunity
to present their claims before the military court of appeal after they
had been acquitted but failed to do so. As a result, they cannot
complain of a violation of their right to a hearing under Article 6
para. 1 (Art. 6-1) of the Convention. Moreover, the court did not hear
the public prosecutor before deciding, proprio motu, not to grant the
applicants compensation. As a result, the principle of equality of arms
was not violated.
96. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention guarantees the right to a "hearing" in the determination of
one's civil rights. In accordance with the case-law of the Court,
although this right can be waived, waiver must be established in an
unequivocal manner. Moreover, the waiver of a procedural right, in
order to be effective, requires minimum guarantees commensurate to its
importance (Eur. Court H.R., Deweer judgment of 27 February 1980,
Series A no. 35, p. 25, para. 49, in conjunction with the Pfeifer and
Plankl judgment of 25 February 1992, Series A no. 227, pp. 16-17,
para. 37).
97. It is not disputed that on 30 May 1991 and 29 May 1991 the
applicants were not heard in connection with their entitlement to
compensation. The issue which must, therefore, be determined is whether
the applicants waived their right to be heard, as the Government
contend.
98. The Commission considers that the right to be heard in the
determination of one's civil rights is one of the most fundamental
rights under Article 6 para. 1 (Art. 6-1) of the Convention. The
requirements of the Convention concerning the guarantees which must
surround its waiver are, therefore, particularly demanding.
99. The Commission notes that under Articles 536 para. 1 and 537
para. 2 of the Code of Criminal Procedure the applicants had the right
to apply for compensation within 48 hours from the pronouncement of the
verdict of the criminal court. On 30 May 1991 and 29 May 1991, however,
the Courts-Martial Appeal Court did not wait for the 48 hour period to
expire. It decided to pronounce proprio motu on the applicants' right
to compensation and joined its negative decisions on this matter to its
verdicts on the merits of the criminal proceedings against the
applicants. Under Article 436 para. 2 of the Code of Criminal Procedure
its decisions on the issue of compensation were final.
100. There can be no doubt that Article 536 para. 1 of the Code of
Criminal Procedure gave the military court of appeal the power to make
proprio motu such orders on the particular occasions. The Commission
considers, however, that Article 6 para. 1 (Art. 6-1) of the Convention
created, in the circumstances of the case, an obligation for the
military court to invite the applicants to express their views on the
compensation issue before exercising that power. The Commission
attaches particular importance in this connection to the legitimate
expectations of the applicants who had in principle the possibility
under national law to present their compensation claims within 48 hours
from the pronouncement of the courts' verdict. It also attaches
importance to the fact that it was clear from the start that the
applicants, being indisputably ministers of a known religion, would
have to be acquitted of the charges of insubordination.
101. Given that the military court of appeal did not invite the
applicants to express their views, the Commission cannot conclude that
it has been established in an unequivocal manner that the applicants
waived their right to be heard. It follows that on 30 May 1991 and
29 May 1991 the applicants were not given a hearing in the
determination of their civil rights in accordance with Article 6
para. 1 (Art. 6-1) of the Convention.
102. The applicants further submit that the military court of appeal
failed to provide adequate reasons for its decisions not to grant them
compensation.
103. The Government submit that the manner in which the decisions of
the military court of appeal were reasoned satisfied the requirements
of Article 6 para. 1 (Art. 6-1) of the Convention. As the applicants
had not submitted any claims for compensation, there were no arguments
to be refuted and there was, accordingly, no need for detailed reasons
to be given.
104. The Commission recalls that, in accordance with the case-law of
the Court, Article 6 para. 1 (Art. 6-1) of the Convention creates an
obligation for all courts to "indicate with sufficient clarity the
grounds on which they based their decision(s)" (Eur. Court H.R.,
Hadjianastassiou judgment of 16 December 1992, Series A no. 252, p. 16,
para. 33).
105. However, on 30 May 1991 and 29 May 1991 the Courts-Martial Appeal
Court reasoned its decisions not to grant the applicants compensation
by merely reproducing the wording of Article 535 para. 1 of the Code
of Criminal Procedure and did not in any way specify why "the
applicants' detention was due to their gross negligence". In this
connection the Commission notes that a reasoned decision on the issue
of compensation would have been all the more necessary, since it was
clear from the start that the applicants, being indisputably ministers
of a known religion, would have to be acquitted of the charges of
insubordination.
106. It follows that the manner in which the decisions of 30 May 1991
and 29 May 1991 of the Court-Martial Appeal Court were reasoned did not
comply with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
CONCLUSION
107. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
F. As regards Article 13 (Art. 13) of the Convention
108. Article 13 (Art. 13) of the Convention provides the following:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
109. The applicants complain that, since the decisions of the military
court of appeal were final, they had no effective remedy under national
law for the violation of their rights under the Convention.
110. In view of its opinion concerning Article 6 (Art. 6) of the
Convention, the Commission does not consider it necessary also to
examine the case under Article 13 (Art. 13).
CONCLUSION
111. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13)
of the Convention.
G. As regards Article 14 (Art. 14) of the Convention in conjunction
with Article 9 (Art. 9) of the Convention
112. The Commission notes that the applicants complain that, because
they were Jehovah's Witnesses, they had to spend considerable periods
of time in detention before obtaining exemption from military service.
It considers that these complaints should be examined under Article 14
(Art. 14) of the Convention in conjunction with Article 9 (Art. 9).
113. Article 14 (Art. 14) of the Convention provides the following:
"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."
Article 9 (Art. 9) of the Convention provides the following:
"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."
114. The applicants complain that they were discriminated against in
the enjoyment of their freedom of religion. Under Article 5 of Law
1763/1988 all ministers of known religions have the right to be
exempted from military service. However, while the ministers of the
Greek Orthodox Church are exempted from military service without
difficulty, the applicants were initially refused exemption, had to
appeal against the relevant administrative decisions before the Council
of State and were detained for thirteen and twelve months respectively
pending the outcome of the proceedings.
115. The Government argue that the applicants were not discriminated
against on the basis of their religious beliefs. Domestic law provides
for a number of grounds on the basis of which one may apply for
exemption from military service. Unsuccessful applicants who refuse to
enlist are always prosecuted.
116. According to the case-law of the Convention organs, Article 14
(Art. 14) of the Convention has no independent existence, but plays an
important role by supplementing the other provisions of the Convention
and the Protocols. Article 14 (Art. 14) safeguards individuals, placed
in similar situations, from discrimination in the enjoyment of the
rights set forth in those other provisions. A measure which as such
could be in conformity with the normative provision may nevertheless
violate that provision taken in conjunction with Article 14, (Art. 14)
if it is applied in a discriminatory manner. It is as if Article 14
(Art. 14) formed an integral part of each of the provisions laying down
the specific rights and freedoms. The Convention organs have
furthermore constantly held that a distinction is discriminatory if it
"has no objective and reasonable justification", that is, if it does
not pursue a "legitimate aim" or if there is not a "reasonable
relationship of proportionality between the means employed and the aim
sought to be realised" (see, inter alia, Eur. Court H.R., "Belgian
linguistic" judgment of 23 July 1968, Series A no. 6, pp. 33-34,
paras. 9-10).
117. The Commission recalls that the Convention does not guarantee per
se a right for religious ministers to be exempted from military service
(see, by implication, Grandrath v. Germany, Comm. Report 12.12.66,
Yearbook 10 p. 630). Greek law, nevertheless, provides for such an
exemption for ministers of "known religions". The aim of this exemption
is to enable these ministers to perform uninhibited their religious
functions. As a result, the subject matter of the applicant's complaint
falls within the scope of Article 9 (Art. 9) of the Convention.
118. Both applicants were indisputably Jehovah's Witnesses religious
ministers. Moreover, Jehovah's Witnesses enjoy in Greece the status of
a "known religion" (see Kokkinakis judgment, loc. cit.). The applicants
applied in due time to be exempted from military service. However, the
Recruitment Offices of Eastern Attica and Patras refused to exempt
them, on the ground that they were not ministers of a known religion.
The applicants appealed to the Director for Recruitment of the General
Headquarters of National Defence. However, while their appeals were
pending, they were ordered to enlist in the army. When the applicants
refused to do so, they were charged with insubordination. The Director
for Recruitment of the General Headquarters of National Defence
confirmed the decisions of the Recruitment Offices that the applicants
were liable to perform military service. The decision of the Director,
being the final administrative decision on the question, opened the way
for the applicants' appeals to the Council of State. The Council of
State examined the applicants' appeals within a reasonable time and
annulled the administrative decisions refusing the applicants'
exemption. In the meanwhile, however, the applicants had been convicted
by the first instance military courts of insubordination, although it
was clear that they could not have committed that offence because they
were ministers of a known religion. The applicants' convictions were
quashed on appeal immediately after the delivery of the decisions of
the Council of State. Nevertheless, the applicants had spent by then
thirteen and twelve months in detention respectively following their
first instance convictions.
119. The Commission notes that, although the applicants were
eventually exempted from military service, they were subjected to
lengthy periods of detention because the military authorities and first
instance military courts refused, inter alia, to recognise that
Jehovah's Witnesses were a known religion. The Government do not
contest the applicants' claim that the ministers of the Orthodox Church
obtain exemption without any difficulty. Moreover, they do not invoke
any reasonable or objective justification for this difference in
treatment. As a result, the Commission considers that the applicants
were discriminated against in the enjoyment of their right under
Article 9 (Art. 9) of the Convention because of their religious beliefs
contrary to Article 14 (Art. 14) of the Convention.
CONCLUSION
120. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 14 (Art. 14) in conjunction with Article 9
(Art. 9) of the Convention.
H. As regards Article 9 (Art. 9) of the Convention
121. Article 9 (Art. 9) of the Convention provides the following:
"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."
122. The applicants complain that they were persecuted because of
their religious beliefs and that they were deprived, during their
detention, of every opportunity to perform their duties as religious
ministers and practise their religion together with the other followers
of their creed.
123. The Government submit that Article 9 (Art. 9) of the Convention
does not require States to exempt religious ministers from military
service. The applicants were imprisoned because they had refused to
obey, while in the army, a superior's order. Their religious beliefs
were irrelevant for their convictions.
124. In view of its opinion concerning Article 14 (Art. 14) in
conjunction with Article 9 (Art. 9) of the Convention, the Commission
does not consider it necessary also to examine the case under Article 9
(Art. 9) on its own.
CONCLUSION
125. The Commission concludes, by 24 votes to 4, that it is not
necessary to examine whether there has been a violation of Article 9
(Art. 9) of the Convention.
I. As regards Article 3 (Art. 3) of the Convention
126. Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
127. The applicants complain that they were subjected to treatment
prohibited under Article 3 (Art. 3) of the Convention as a result of
the refusal of the military authorities to recognise them as ministers
of a known religion and their detention following the decision of the
first instance military courts.
128. The Government submit that it could not be argued that the
applicants were submitted to treatment contrary to Article 3 (Art. 3)
of the Convention, given the requirements of this provision as to the
level of severity.
129. The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3) of the Convention (Eur. Court H.R., Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,
para. 162). It considers that this level of severity was not attained
in the applicants' case. As a result, Article 3 (Art. 3) of the
Convention was not violated.
CONCLUSION
130. The Commission concludes, unanimously, that there has been no
violation of Article 3 (Art. 3) of the Convention.
J. Recapitulation
131. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 78).
132. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 83).
133. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para.
107).
134. The Commission concludes, unanimously, that it is not necessary
to examine whether there has been a violation of Article 13 (Art. 13)
of the Convention (para. 111).
135. The Commission concludes, by 26 votes to 2, that there has been
a violation of Article 14 (Art. 14) in conjunction with Article 9
(Art. 9) of the Convention (para. 120).
136. The Commission concludes, by 24 votes to 4, that it is not
necessary to examine whether there has been a violation of Article 9
(Art. 9) of the Convention (para. 125).
137. The Commission concludes, unanimously, that there has been no
violation of Article 3 (Art. 3) of the Convention (para. 130).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
(Or. English)
SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL,
JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI
I agree with the majority that there has been a violation of
Article 5 para. 1 of the Convention in the present case. However, to
arrive at this conclusion I prefer another reasoning.
In fact, I strongly hesitate to find a violation of Article 5
para. 1 on the basis of the argument that a conviction was
substantially wrong and therefore the execution of the sentence which
consists in a deprivation of liberty cannot be justified under
Article 5 para. 1 (a) (would a pecuniary sentence constitute a
violation of Article 1 of Protocol No. 1 ?). This is what the majority
says in para. 77: "... it has been established that the applicants'
conviction ... has clearly no basis in domestic law. As a result, the
detention of the applicant[s] ... cannot be considered to be 'lawful'
within the meaning of Article 5 para. 1 (a) of the Convention".
As a consequence, this would imply that the merits of a sentence
(e.g. under Article 7) could be examined by way of an application
concerning the prison sentence. Thereby, both rules of exhaustion of
domestic remedies and the six-months' time-limit could be circumvented.
I would also like to refer to Article 3 of Protocol No. 7 which grants
a right to compensation only in case a "final decision" was quashed
after the person concerned has served (part of) a sentence. In effect,
the reasoning of the majority leads to a right to compensation also if
a prior judgment has been reversed on appeal, which was not at all the
intention when Protocol No. 7 was drafted.
I cannot help but refer to an opinion which I have stubbornly
upheld since a very long time and last expressed in my dissenting
opinion in B v. Austria (Eur. Court H.R., judgment of 28 March 1990,
Series A no. 175, p. 29s.): detention after conviction in first
instance is to be regarded as detention on remand within the meaning
of Article 5 para. 1 (c) as long as the domestic law gives suspensive
effect to the appeal.
There can be no reasonable doubt that this was the case for the
applicant's detention after conviction in the present case. Para. 47
of the Report relates that "[t]he Public Prosecutor ... proposed that
the applicants' provisional detention should be continued" (emphasis
added).
Starting from this point of view, it is uncontestable that no
reasonable suspicion of having committed an offence could be held
against the applicants in view of the case-law of the Council of State.
This, in my view, is the reasoning which leads to the finding of a
violation of Article 5 para. 1 in the present case.
(Or. English)
PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY
I agree that there has been a violation of Article 14 in
conjunction with Article 9 of the Convention, but unlike the majority
consider that it is necessary to examine the case under Article 9 taken
by itself.
A separate issue arises because if the applicants had undertaken
military service they would have been acting contrary to a fundamental
tenet of their religion. The alternative for them was to refuse to
enlist and risk prosecution and detention, thus depriving them of the
opportunity to manifest their religion in community with others and in
public, in worship, teaching, practice and observance. In their dilemma
they opted for the latter course and were, in the event, subjected to
lengthy periods of detention. It may be assumed that this course of
action represented, to them, a lesser evil than performing military
service.
I consider that, by analogy with the Young, James and Webster
Case (Series A, Vol. 44) such a form of compulsion, in the
circumstances of the case, strikes at the very substance of the freedom
guaranteed. The freedom in this case is the freedom to manifest the
well-known religious conviction of Jehovah's Witnesses by refraining
from personal military service. The situation can be distinguished from
one in which the actions of individuals do not actually express the
belief concerned (Arrowsmith v. United Kingdom, Comm. Report 12.10.78,
D.R. 19 p. 5) and from a situation concerning an obligation which has
no specific conscientious implications in itself, such as a general
tax obligation (Application No. 10358/83, D.R. 37 p. 142). There has
accordingly been an interference with the right guaranteed by
Article 9 para. 1.
Given the particular status of the applicants as ministers of a
known religion, and the Commission's finding of unlawfulness under
Article 5 para. 1, it cannot be said that the interference was
"prescribed by law" for the purpose of Article 9 para. 2. This makes
it unnecessary to consider whether it was "necessary in a democratic
society" for one of the aims mentioned in that provision.
This conclusion is not affected by the fact that Article 4
para. 3 (b) of the Convention specifies that "any service of a military
character, or, in case of conscientious objectors in countries where
they are recognised, service exacted instead of compulsory military
service" is not included in the concept of forced or compulsory labour.
It is true that in the Grandrath Case (Comm. Report, 12.12.66) the
Commission concluded that this express reference meant that objections
of conscience do not, under the Convention, entitle a person to
exemption from such service. However, as pointed out by
Mr. Eusthadiades in his concurring opinion, this does not mean that
Article 9 is inapplicable, but rather that the necessity for compulsory
military or alternative service falls to be considered under
paragraph 2 of Article 9, and that the margin of appreciation is
extended as a result of Article 4 para. 3 (b).
The approach of Mr. Eusthadiades is in my view more consistent
with the structure of the Convention. First, the savers in Article 4
are for the purposes of the right specifically guaranteed by Article 4.
Second, the Convention does not purport to recognise that States may
arbitrarily impose compulsory military service or alternative service.
The Court has found a violation of Article 14 in conjunction with
Article 4 para. 3 (d) where a financial burden ensuing from provision
for compulsory service in the fire-brigade involved a difference of
treatment on the ground of sex (Schmidt v. Germany, Judgment of
18 July 1994, Series A, Vol. 291). Third, the Commission in the above-
mentioned case had been of the opinion that there had also been a
violation of Article 14 in conjunction with Article 1 of
Protocol No. 1. In the event, the Court did not find it necessary to
examine the complaint. This represents a significant evolution of the
law since the Grandrath Case: neither the Commission nor the Court
adopted the view that the saver in Article 4 para. 3 (b) had the effect
of rendering Article 1 of Protocol No. 1 inapplicable. Fourth, the
formulation of Article 4 para. 3 (b) ("any" service of a military
character, "in case of conscientious objectors in countries where they
are recognised") makes it clear that the framers of the Convention did
not assume that every country had a need for compulsory military
service, but allowed (without prejudging any issue under other
provisions of the Convention) for the fact that not every country gave
recognition to conscientious objectors. Finally, Article 9 contains no
express saver for compulsory military or alternative service in its
first paragraph, notwithstanding the recognition in Article 4
para. 3 (b) that questions of conscience could arise concerning
military service, and notwithstanding the deliberate insertion of a
third "saving" sentence in the first paragraph of Article 10.
For these reasons, I voted for a finding of a violation of
Article 9 taken by itself.
(Or. English)
PARTIALLY DISSENTING OPINION OF MR. G. RESS
In this case I have voted for a violation of Article 9 alone
since, in my view, the complaints raised by the applicants are not
wholly dealt with in the context of discrimination. A conclusion of no
separate issue arises when the complaint in question is covered by a
finding of a violation of another provision, or a combination of other
provisions, of the Convention. Where the interference in religious
freedom essentially results from discrimination, a finding of a
violation of Article 14 in conjunction with Article 9 is sufficient.
In the present case, discrimination has been established. However, not
every infringement of the right of religion, or of the other rights
contained in the Convention, can be characterised as consisting only
of discrimination: such an interpretation would impose a subsidiary and
negligible role on the other rights guaranteed under the Convention.
Where, as in this application, the infringement is of a grave nature
and specifically directed against the exercice of a right by a
particular applicant, issues must be acknowledged as arising in
addition to a finding of a violation of Article 14. Consequently, since
it appears that in this case the ministers ot the Jehovah's Witnesses
are the specific target ot the military authorities, there is a further
and separate violation of Article 9.