GEORGIADIS v. GREECE
Doc ref: 21522/93 • ECHR ID: 001-45803
Document date: February 27, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 21522/93
Anastasios Georgiadis
against
Greece
REPORT OF THE COMMISSION
(adopted on 27 February 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-27). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 28-30). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 31-62) . . . . . . . . . . . . . . . . . . . . .6
A. Issues declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . .6
B. Points at issue
(para. 32). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 6 para. 1 of the Convention
(paras. 33-56). . . . . . . . . . . . . . . . . . .6
1. The applicability of Article 6 para. 1 of the
Convention
(paras. 34-42). . . . . . . . . . . . . . . . . . .6
2. Compliance with Article 6 para. 1 of the Convention
(paras. 43-55). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 56). . . . . . . . . . . . . . . . . . . . 10
D. As regards Article 13 of the Convention
(paras. 57-59). . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 60). . . . . . . . . . . . . . . . . . . . 10
E. Recapitulation
(paras 61-62) . . . . . . . . . . . . . . . . . . 11
APPENDIX: DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF THE APPLICATION. . . . 12
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 applicant is a Greek citizen, born in 1963 and resident in
Athens. He was represented before the Commission by Mr. P. Bitsaxis,
an attorney at law practising in Athens.
3. The application is 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 fairness of the proceedings relating to the
applicant's compensation claim for detention on remand. The applicant
invokes Articles 6 para. 1 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 27 February 1993 and registered
on 11 March 1993.
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
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 13 December 1993
after one extension of the time-limit fixed for this purpose. The
applicant replied on 17 February 1994.
8. On 10 October 1994 the Commission declared admissible the
applicant's complaints under Articles 6 and 13 of the Convention. It
declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 20 October 1994 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.
10. 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
11. 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
C.A. NØRGAARD
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
K. HERNDL
12. The text of this Report was adopted on 27 February 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.
13. 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.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. 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
16. On 3 January 1989 the applicant was appointed religious minister
for the Prefectures of Karditsa and Larissa 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 13 January 1989 the Director of Internal Affairs of the
Prefecture of Karditsa notified the registry offices of Karditsa of
this appointment. By letter of 24 January 1989 from the Director of
Internal Affairs of the Prefecture of Larissa, the registry offices of
Larissa were also notified of this fact.
17. On 11 September 1991, the applicant lodged an application with
the Recruiting Office of Serres 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 17 September 1991, the Serres
Recruiting Office rejected the application on the ground that Jehovah's
Witnesses were not a "known religion".
18. On 7 October 1991 the applicant lodged an administrative appeal
with the Director for Recruitment of the General Headquarters for
National Defence. His appeal was rejected on 18 December 1991 on the
ground that he was not a minister of a "known religion". On the same
day, the Serres Office ordered him to report for duty at a military
training centre in Nafplio on 20 January 1992.
19. The applicant presented himself at the Nafplio centre, as
ordered, but refused to enlist, invoking his status of a minister of
a known religion. Considering that the applicant had committed the
criminal offence of insubordination, the military commander of the
training centre placed the applicant in detention on remand in the
centre's disciplinary unit and ordered a preliminary investigation
against him. Upon termination of the investigation, the applicant was
committed for trial for insubordination by the competent military
justice authorities on 29 January 1992. The order for his detention on
remand was renewed and he was transferred to the military prison of
Avlona.
20. On 13 February 1992, the applicant lodged an appeal before the
Council of State (Simvulio tis Epikratias) asking for the annulment of
the decision of 18 December 1991 of the Director for Recruitment of the
General Headquarters for National Defence.
21. On 16 March 1992, the Permanent Military Court (Stratodikio) of
Athens, composed of one military judge and four ordinary officers,
examined the criminal charges against the applicant. Having heard the
evidence and the parties' submissions on the question of the
applicant's guilt, the court withdrew for deliberations. After the
deliberations, the president of the court announced the verdict. The
applicant was acquitted because there was no act of insubordination as
the applicant had no obligation to perform military service, being a
minister of a known religion. Then the president declared the hearing
closed.
22. The director of the Avlona prison released the applicant
immediately, granted him leave of absence until 2 April 1992 and
ordered him to report for duty on 4 April at the Nafplio centre. On
4 April 1992, the applicant presented himself to the Nafplio centre
where he was ordered to enlist in the military forces. When he refused,
he was charged with insubordination and placed in detention on remand.
On 15 April 1992 he was committed for trial.
23. On 8 May 1992, the Permanent Military Court of Athens, composed
of one military judge and four ordinary officers, examined the new
criminal charges against the applicant. Having heard the evidence and
the parties' submissions on the question of the applicant's guilt, the
court withdrew for deliberations. After the deliberations, the
president of the court announced the verdict. The applicant was
acquitted because there were doubts as to his intention to commit the
criminal offence of insubordination. The following order was joined to
and read out together with the court's verdict: "No compensation should
be granted to the applicant for his detention on remand, since this
detention was due to his gross negligence." Then the president declared
the hearing closed.
24. The applicant was immediately released from the Avlona prison,
given a leave of absence and ordered to report for duty at the Nafplio
centre on 22 May 1992. He was again ordered to enlist, charged with
insubordination and detained on remand.
25. On 7 July 1992, the Council of State annulled the decision of
18 December 1991 of the Director for Recruitment of the General
Headquarters for National Defence 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.
26. On 27 July 1992, the applicant was provisionally released from
the military prison of Thessaloniki pursuant to a decision of the
Permanent Military Court of Thessaloniki sitting in chambers. A
certificate of provisional exemption from military service was issued
on the ground that the applicant was a minister of a "known religion".
27. On 10 September 1992, the Permanent Military Court of
Thessaloniki, composed of one military judge and four ordinary
officers, examined the criminal charges against the applicant. Having
heard the evidence and the parties' submissions on the question of the
applicant's guilt, the court withdrew for deliberations. After the
deliberations, the president of the court announced the verdict. The
applicant was acquitted, because he lacked the intention of committing
the offence of insubordination. 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 on remand,
since this detention was due to his gross negligence." Then the
president declared the hearing closed.
B. Relevant domestic law
28. Article 5 of Law 1763/1988 exempts all ministers of "known
religions" from military service.
29. The Council of State has repeatedly considered that Jehovah's
Witnesses are a known religion (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.
30. The Code of Criminal Procedure provides the following:
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 ...."
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
31. The Commission has declared admissible the applicant's complaint
that the military courts refused him compensation in respect of his
detention on remand by decisions which were final without hearing him.
The Commission also declared admissible the issue arising from the
manner in which the decisions of the military courts on the issue of
compensation were reasoned.
B. Points at issue
32. The issue to be determined is whether Articles 6 para. 1 and 13
(Art. 6-1, 13) of the Convention were violated by reason of the
military courts' final refusal of compensation in respect of the
applicant's detention on remand allegedly without a hearing, and the
manner in which the relevant decisions were reasoned.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
33. 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
34. The applicant submits that the proceedings on his entitlement to
compensation in respect of his detention on remand involved a
determination of his civil rights. He argues that the rules governing
compensation for detention on remand are nothing other 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.
35. The Government submit that Article 6 (Art. 6) of the Convention
does not apply to the proceedings in question. The applicant's
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.
36. 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, p. 38,
para. 22).
37. 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).
38. The Commission considers that, although the applicant never
asserted his claim before the competent military courts, it cannot be
excluded that there was a "dispute", since the applicant affirms that
he would have applied for compensation if he had not been prevented
from doing so by the Permanent Military Courts of Athens and
Thessaloniki on 8 May 1992 and 10 September 1992. The Commission
considers that no inferences to the contrary may be drawn from the
failure of the applicant to apply for compensation, although he had
such an opportunity, when he was first acquitted by the Permanent
Military Court of Athens on 16 March 1992.
39. The Commission also considers that the applicant would have had
a "right" under domestic law to be compensated in respect of the period
he spent in detention on remand if the military courts of Athens and
Thessaloniki had not found on 8 May 1992 and 10 September 1992 that the
detention had been due to his gross negligence. This transpires clearly
from the letter of 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).
40. The Commission also notes that under Article 539 para. 1 of the
Code of Criminal Procedure the military courts had the power
conclusively to decide whether the applicant was in principle entitled
to compensation. As a result, although the applicant would have been
required to institute further proceedings before the civil courts if
the military courts had issued a decision in his favour, the outcome
of the proceedings before the military courts was directly decisive for
the applicant's right to compensation. It follows that, by refusing to
grant the applicant compensation on 8 May 1992 and 10 September 1992,
the military courts of Athens and Thessaloniki "determined" a "right"
which could arguably be said to be recognised under domestic law.
41. Moreover, the decision taken by the above courts on the
applicant's right of compensation under Article 533 et seq. of the Code
of Criminal Procedure concerned pecuniary and non-pecuniary damages
resulting from detention on remand. 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
the criminal courts 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).
42. For these reasons, the Commission considers that by refusing to
grant the applicant compensation in their decisions of 8 May 1992 and
10 September 1992, the Permanent Military Courts of Athens and
Thessaloniki "determined" a "civil right" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. However, the same
cannot be said of the decision of the Military Court of Athens of 16
March 1992 where the question of the applicant's entitlement to
compensation was not examined.
2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
43. The applicant complains that the military courts refused him
compensation without hearing him. He submits 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 applicant was effectively
prevented by the military courts from exercising his rights. The
question of his entitlement to compensation was examined proprio motu
in the course of the courts' deliberations on the question of his
guilt. The applicant had not and could not have been heard at this
stage of the proceedings on the issue of compensation. The courts,
nevertheless, hastened to join their negative decision on this issue
to their verdict on the merits which they pronounced immediately after
they had concluded their deliberations. This decision was final.
44. The Government submit that the applicant had ample opportunity
to present his claims before the military courts after he had been
acquitted but failed to do so. As a result, he cannot complain of a
violation of his right to a hearing under Article 6 para. 1 (Art. 6-1)
of the Convention. Moreover, the courts did not hear the public
prosecutor before deciding, proprio motu, not to grant the applicant
compensation. As a result, the principle of equality of arms was not
violated.
45. 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.
46. It is not disputed that on 8 May 1992 and 10 September 1992 the
applicant was not heard in connection with his entitlement to
compensation. The issue which must, therefore, be determined is whether
the applicant waived his right to be heard, as the Government contend.
47. 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.
48. The Commission notes that under Articles 536 para. 1 and 537
para. 2 of the Code of Criminal Procedure the applicant had the right
to apply for compensation within 48 hours from the pronouncement of the
verdict of the criminal court. On 8 May 1992 and 10 September 1992,
however, the Permanent Military Courts of Athens and Thessaloniki did
not wait for the 48 hour period to expire. They decided to pronounce
proprio motu on the applicant's right to compensation and joined their
negative decision on this matter to their verdict on the merits of the
criminal proceedings against the applicant. Under Article 436 para. 2
of the Code of Criminal Procedure their decision on the issue of
compensation was final.
49. There can be no doubt that Article 536 para. 1 of the Code of
Criminal Procedure gave the military courts 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 courts
to invite the applicant to express his views on the compensation issue
before exercising that power. The Commission attaches particular
importance in this connection to the legitimate expectations of the
applicant who had in principle the possibility under national law to
present his compensation claim within 48 hours from the pronouncement
of the courts' verdict. It also attaches importance to the context in
which the issue of the applicant' entitlement to compensation arose.
Although the first prosecution for insubordination resulted in the
applicant's acquittal on the ground that he was a minister of a known
religion who had no obligation to perform military service, the
applicant was further subjected to two sets of criminal proceedings for
refusing to enlist in the army and to detention of a total duration of
three months and nine days.
50. Given that the military courts did not invite the applicant to
express his views, the Commission cannot conclude that it has been
established in an unequivocal manner that the applicant waived his
right to be heard. It follows that on 8 May 1992 and 10 September 1992
the applicant was not given a hearing in the determination of his civil
rights in accordance with Article 6 para. 1 (Art. 6-1) of the
Convention.
51. The applicant further submits that the military courts failed to
provide adequate reasons for their decisions not to grant him
compensation. Military courts in Greece, being composed of judges and
lay officers, do not differ in any manner from other mixed criminal
courts which give reasons for their decisions.
52. The Government submit that the manner in which the decisions of
the military courts were reasoned satisfied the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention. As the majority of
judges were ordinary officers, the military criminal courts which tried
the applicant resembled jury courts which did not give reasons for
their verdicts. As the applicant had not submitted any claim for
compensation, there were no arguments to be refuted and there was,
accordingly, no need for detailed reasons to be given.
53. 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).
54. However, on 8 May 1992 and 10 September 1992 the Permanent
Military Courts of Athens and Thessaloniki reasoned their decisions not
to grant the applicant 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 applicant's detention was due to his 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 the applicant had been subjected to detention on
remand of a total duration of three months and nine days in the context
of two successive criminal proceedings for refusing to enlist in the
army, although he had already been acquitted of the offence of
insubordination on the ground that he was a minister of a known
religion who had no obligation to perform military service.
55. It follows that the manner in which the decisions of 8 May 1992
and 10 September 1992 of the Permanent Military Courts of Athens and
Thessaloniki were reasoned did not comply with the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
56. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
D. As regards Article 13 (Art. 13) of the Convention
57. 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."
58. The applicant complains that, since the decisions of the military
courts were final, he had no effective remedy under national law for
the violation of his rights under the Convention.
59. 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
60. 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 in this case.
E. Recapitulation
61. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
62. 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 in this case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)