Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34369/97

by Iakovos THLIMMENOS

against Greece

The European Commission of Human Rights sitting in private on

12 January 1998, the following members being present:

Mr S. TRECHSEL, President

MM J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

MM H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 December 1996

by Iakovos THLIMMENOS against Greece and registered on 8 January 1997

under file No. 34369/97;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 6

August 1997 and the observations in reply submitted by the

applicant on 20 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1955. He is an

economist and resides in Messinia, Greece. In the proceedings before

the Commission he is represented by Mr. N. Alivizatos and Mr. S.

Tsakyrakis, both of them lawyers practising in Athens.

The facts of the case, as they have been submitted by the

parties, can be summarised as follows:

A. The particular circumstances of the case

On 9 December 1983 the Permanent Martial Court (Diarkes

Stratodikio) of Athens, composed of one career military judge and four

other officers, convicted the applicant, a Jehovah's Witness, of

insubordination for having refused to enlist in the army at a time of

general mobilisation. However, the martial court considered under

Article 70(b) of the Military Criminal Code and under Article 84

para. 2 (a) of the Criminal Code that there were extenuating

circumstances and sentenced the applicant to four years' imprisonment.

The applicant was released on parole after two years and one day.

In June 1988 the applicant sat a public examination for the

appointment of twelve chartered accountants, a liberal profession in

Greece. He came second among sixty candidates. However, on 8 February

1989 the Executive Board of the Greek Chartered Accountants' Body

(hereinafter "the Board") refused to appoint him on the ground that he

had been convicted of a felony (kakuryima). On 8 May 1989 the applicant

appealed to the Council of State (Simvulio Epikratias) invoking, inter

alia, his right to freedom of religion and equality before the law, as

guaranteed by the Constitution and the Convention. The applicant also

submitted that he had not been convicted of a felony but of a less

serious crime.

On 18 April 1991 the Third Chamber of the Council held a hearing.

On 25 May 1991 it decided to refer the case to the Plenary because of

the important issues it raised. The Chamber's own view was the

following. Article 10 of Legislative Decree No. 3329/1955 provided that

no person who would not qualify for appointment to the civil service

could be appointed a chartered accountant. Moreover, according to

Article 22 para. 1 of the Civil Servants Code, no person convicted of

a felony can be appointed to the civil service. However, this provision

referred to convictions by courts established in accordance with

Article 87 para. 1 of the Constitution. This was not the case with the

permanent military courts, because the majority of their members were

not career judges, enjoying the same guarantees of independence as

their civilian colleagues, as envisaged by Article 96 para. 5 of the

Constitution. As a result, the applicant's conviction by the Permanent

Martial Court of Athens could not be taken into consideration and the

decision refusing to appoint the applicant chartered accountant had to

be quashed.

On 21 January 1994 a hearing was held before the Council of

State, sitting in Plenary. On 11 November 1994 the Council of State

decided that the Board had complied with the law when, for the purposes

of applying Article 22 para. 1 of the Civil Servants Code, it took into

consideration the applicant's conviction of a felony by the Permanent

Martial Court of Athens. Article 96 para. 5 of the Constitution

provided that the military courts would continue functioning as they

used to until the enactment of a new law which would change their

composition and such a law had not yet been enacted. The Council of

State further decided that the case should be referred back to the

Third Chamber which would examine its remaining aspects.

The decision of 11 November 1994 was taken by a majority. The

minority considered that, since nine years had passed since the

Constitution had entered into force without the law envisaged in

Article 96 para. 5 thereof having been enacted, the guarantees of

independence required from civilian judges had to be afforded by the

existing military courts. Since that was not the case with the

Permanent Military Court of Athens, the applicant's appeal had to be

allowed.

On 26 October 1995 the Third Chamber held a further hearing. On

28 June 1996 it rejected the applicant's appeal, considering, inter

alia, that the Board's failure to appoint the applicant was not related

to his religious beliefs but to the fact that he had committed a

criminal offence.

B. Relevant domestic law

Article 10 of Legislative Decree No. 3329/1955, as amended by

Article 5 of Presidential Decree 15/1989, provides that no person who

does not qualify for appointment to the civil service may be appointed

as a chartered accountant.

According to Article 22 para. 1 of the Civil Servants Code, no

person convicted of a felony can be appointed to the civil service.

Article 70 of the Military Criminal Code in force until 1995

provided as follows:

"A member of the armed forces who, having been ordered by his

commander to perform a duty, refuses or fails to execute the

order is punished

(a) if the act is committed in front of the enemy or armed

insurgents, with death

(b) in times of war or armed insurgency or during a state of

siege or general mobilisation, with death or, if there are

extenuating circumstances, with life imprisonment or imprisonment

of at least five years and

(c) in all other circumstances, with imprisonment between six

months and two years."

By virtue of Presidential Decree 506/1974, at the time of the

applicant's arrest Greece was deemed to be in general mobilisation.

This decree still remains in force.

Article 84 para. 2 (a) of the Criminal Code provides that a lower

penalty is imposed on persons who, prior to the crime, had led an

honest life.

Under Article 2 para. 4 of Law 731/1977, those who refuse to

perform unarmed military service on the basis of their religious

beliefs are sentenced to imprisonment of a duration equivalent to that

of the unarmed service, i.e. less than five years.

Under Article 1 of the Military Criminal Code in force until

1995, offences punishable with a sentence of at least five years'

imprisonment were considered to be felonies (kakuryimata). Offences

punishable with a sentence of up to five years' imprisonment were

considered misdemeanours (plimmelimata).

Under the new Military Criminal Code of 1995 insubordination not

committed in time of war or in front of the enemy is considered a

misdemeanour.

Law 2510/1997 gives conscientious objectors the right to perform

civilian, instead of military, service.

According to Article 87 para. 1 of the Constitution, justice is

rendered by courts composed of permanent judges who enjoy personal and

functional independence.

According to Article 96 para. 5 of the Constitution, the majority

of the members of the Permanent Martial Courts are career military

judges enjoying the same guarantees of personal and functional

independence as civilian judges. It was expressly provided in the

Constitution that a law would determine how and as from which time this

provision would apply. A law intended to give effect to this provision

was enacted for the first time in 1995. Thus, the new Military Code

provides that at least three of the five members of the Permanent

Martial Courts are career military judges enjoying the same guarantees

of personal and functional independence as civilian judges.

COMPLAINTS

1. The applicant complains under Articles 9 and 14 of the Convention

about his non-appointment as chartered accountant. He stresses that the

only reason why he had not been appointed was his conviction for

refusal to enlist in the army and that this refusal was exclusively

motivated by his religious beliefs.

2. The applicant also complains under Article 6 para. 1 of the

Convention that he did not have a fair hearing in the determination of

his civil rights and obligations, because the Council of State took

into consideration, for the purposes of applying Article 22 para. 1 of

the Civil Servants Code, his conviction by the Permanent Martial Court

of Athens, although this was not an independent tribunal. He also

complains of the length of the proceedings before the Council of State.

3. In his observations in reply, the applicant complained that the

authorities' refusal to appoint him as a chartered accountant amounted

to a violation of his right under Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 December 1996 and registered

on 8 January 1997.

On 26 May 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

4 August 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 20 October 1997.

THE LAW

1. The applicant complains under Article 9 (Art. 9) of the

Convention taken on its own and in conjunction with Article 14

(Art. 9+14) about his non-appointment as chartered accountant further

to a conviction for insubordination for refusal to enlist in the army.

Article 9 (Art. 9) of the Convention provides as follows:

"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."

Moreover, Article 14 (Art. 14) of the Convention provides as

follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government submit that there has been no interference with

the applicant's right to freedom of religion under Article 9 (Art. 9)

of the Convention. Article 22 para. 1 of the Greek Civil Servants

Code, which precludes the appointment of persons convicted of a felony

to the civil service, applies generally and neutrally. It allows no

room for a case-by-case evaluation of the nature of the crime and of

the motives of the person who was convicted. Moreover, the Convention

does not guarantee the right of conscientious objection and, in any

event, the applicant's original conviction does not fall within the

competence of the Commission. As regards Article 14 (Art. 14) of the

Convention the Government submit that the reason for the authorities'

refusal to appoint the applicant to a charted accountant's post was his

criminal conviction and not his religious beliefs.

The applicant argues that he has not been convicted of a felony

but of a misdemeanour. It was Article 2 para. 4 of Law 731/1977 which

applied in his case and not Article 70 of the Military Criminal Code.

Moreover, the application of Article 22 para. 1 of the Civil Servants

Code in his case was entirely disproportionate, since no account was

taken of the nature of the post to which he sought appointment, of the

nature of the offence, of his motives and of his conduct after his

conviction. The refusal to appoint him to a post of chartered

accountant amounted to a second penalty for the same offence. In these

circumstances, the applicant argues that there was a violation of

Article 9 (Art. 9) of the Convention. As regards Article 14 (Art. 14)

of the Convention, the applicant points out that his conviction was

directly related to his religious beliefs.

The Commission, in the light of the parties' observations,

considers that this part of the application raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This part of the

application cannot, therefore, be regarded as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other ground for declaring it inadmissible has been

established.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not have a fair hearing in the determination of

his civil rights and obligations by the Council of State.

Article 6 para. 1 (Art. 6-1) of the Convention provides as

follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair ... hearing within a reasonable

time by an independent and impartial tribunal established by

law."

The Government submit that the Commission is not competent to

reexamine the merits of a case, as the applicant invites it to do.

The applicant argues that the Council of State should not have

relied on a conviction pronounced by judges who were not independent.

The Commission notes that the applicant in essence disagrees with

the manner in which the Council of State interpreted Article 22 para. 1

of the Civil Servants Code and the requirements of the Constitution

concerning the composition of the military courts. However, even

assuming that Article 6 para. 1 (Art. 6-1) of the Convention applies

to the proceedings in question, the Commission is not competent to

examine alleged errors of fact or law committed by the domestic courts,

except where it considers that such errors might have involved a

possible violation of the rights and freedoms set out in the Convention

or the Protocols to the Convention (No. 12013/86, Dec. 10.3.89, D.R.

59 p. 100).

As no appearance of such a violation is disclosed in the

circumstances of the applicant's case, this part of the application

must be rejected as manifestly ill-founded in accordance with Article

27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the proceedings before the Council of

State.

The Government argue that the length of the proceedings was

reasonable given the complexity of the legal issues involved and the

Council of State's case-load.

The applicant submits that the length of the proceedings cannot

be justified in a case which did not involve the taking of factual

evidence.

The Commission, in the light of the parties' observations,

considers that this part of the application raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This part of the

application cannot, therefore, be regarded as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other ground for declaring it inadmissible has been

established.

4. The applicant complains that the authorities' refusal to appoint

him as a chartered accountant amounted to a violation of his right

under Article 1 of Protocol No. 1 (P1-1).

The Commission notes that this complaint was first raised in the

applicant's observations in reply, which were submitted on

20 October 1997, i.e. more than six months after 28 June 1996 when the

final decision was issued in his case.

It follows that the applicant did not comply with the six months

rule set out in Article 26 (Art. 26) of the Convention and this part

of the application must, accordingly, be rejected in accordance with

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, wihtout prejudging their merits, the

applicant's complaints concerning his right to freedom of

religion and his right not to be subjected to discrimination in

this respect

and, unanimously,

DECLARES ADMISSIBLE, without prejudging its merits, the

applicant's complaint concerning the length of the proceedings

before the Council of State and

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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