Lexploria

Application No. 24120/94 Application No. 25506/94

by Georgios PETROU by Omiros KONSTANTINOU

against Cyprus against Cyprus

The European Commission of Human Rights sitting in private on

27 november 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, 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 applications introduced on 5 April 1994 and

10 October 1994 by Georgiou PETROU and Omiros KONSTANTINOU against

Cyprus and registered on 11 May 1994 and 27 October 1994 under file

No. 24120/94 and No. 25506/94 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

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 19 and

27 April and 9 August 1995 and the observations in reply

submitted by the applicants on 13 and 22 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Cypriot citizen, born in 1966 and

resident in Nicosia. The second applicant is a Cypriot citizen, born

in 1955 and resident in Limassol. Before the Commission the applicants

are represented by Mr. Panayotis Bitsaxis, an attorney-at-law

practising in Athens.

The facts of the case, as submitted by the parties, may be

summarised as follows.

1. The particular circumstances of the case

Application No. 24120/94

The applicant is a Jehovah's Witness.

On 24 November 1983 the applicant received a draft order for

military service with which he did not comply.

On 21 May 1984 the applicant was convicted of insubordination

(anipotaxia) and sentenced to 15 months' imprisonment by the Nicosia

Military Court. The applicant served his prison sentence between

21 May 1984 and 20 May 1985.

On 2 December 1985 the applicant received another draft order for

military service. The applicant performed his military service between

8 January 1986 and 18 February 1987.

On 10 December 1987 the applicant received a draft order for an

armed military drill with which he did not comply.

On 21 April 1988 the applicant was convicted of insubordination

and sentenced to a fine of 30 Cypriot pounds by the Nicosia Military

Court.

On 17 March 1989 the applicant received a draft order for another

armed military drill with which he did not comply.

On 17 January 1990 the applicant was convicted of insubordination

and sentenced to 2 months' imprisonment by the Nicosia Military Court.

The applicant served his prison sentence between 17 January 1990 and

3 March 1990.

Between May 1989 and August 1990 the applicant received four

draft orders for armed military drills with which he did not comply.

On 13 September 1990 the applicant was convicted of

insubordination and sentenced to 3 months' imprisonment by the Nicosia

Military Court. The applicant served his prison sentence between

13 September 1990 and 24 November 1990.

Between 25 July 1990 and 11 November 1991 the applicant received

four draft orders for armed military drills with which he did not

comply.

On 17 January 1992 Law No. 2/1992 recognised conscientious

objection to the performance of military service, providing that

conscripts who wish to be recognised as conscientious objectors must

file an application to the competent Minister at least 30 days before

the date of their enlistment.

Between 13 March 1992 and 29 April 1993 the applicant received

four draft orders for armed military drills with which he did not

comply. The applicant alleges that he had always received the draft

orders too late, namely less than 30 days before his enlistment, and

that, therefore, he did not have the opportunity of being recognised

as a conscientious objector.

On 25 May 1993 the Department of Welfare of the Republic of

Cyprus (Tmima Evimerias tis Kipriakis Dimokratias) prepared a "social

report" (kinoniki ekthesi) concerning the personality of the applicant,

his private and family life. The applicant refused to co-operate in the

preparation of that report.

On 1 July 1993 the applicant was convicted of insubordination to

the eight draft orders he had received between 25 July 1990 and

29 April 1993, and sentenced to 6 months' imprisonment by the Nicosia

Military Court.

On 9 July 1993 the applicant lodged an appeal against the said

sentence before the Supreme Court (Anotato Dikastirio) of Cyprus. He

pleaded guilty of the offence of insubordination with which he had been

charged but stressed that he is a conscientious objector and argued on

the provisions and meaning of Article 10 of the Cypriot Constitution

which is similar to Article 4 of the Convention.

On 16 November 1993 the Supreme Court of Cyprus ordered the

applicant's release from prison on the ground that the sentence imposed

was "excessive". It also found that the applicant had refused to comply

with Law No. 2/1992.

Between 2 November 1993 and 25 February 1995 the applicant

received three draft orders for armed military drills with which he did

not comply.

Application No. 25506/94

The applicant served his military service between 1973 and 1976.

Since 1982 the applicant is a Jehovah's Witness.

In 1983 the applicant received a draft order for an armed

military drill with which he did not comply.

On 15 November 1983 the applicant was convicted of

insubordination (anipotaxia) and sentenced to 3 months' imprisonment

by the Nicosia Military Court. The applicant served his prison sentence

between 15 November 1983 and 31 December 1983.

Between January and March 1984 the applicant received four draft

orders for armed military drills with which he did not comply.

On 8 March 1984 the applicant was convicted of insubordination

and sentenced to 8 months' imprisonment by the Nicosia Military Court.

The applicant served his prison sentence between 8 March 1984 and

20 September 1984.

Between September 1984 and June 1991 the applicant received three

draft orders for armed military drills with which he did not comply.

On 2 July 1991 the applicant was convicted of insubordination and

sentenced to 2 months' imprisonment by the Nicosia Military Court. The

applicant served his prison sentence between 2 July 1991 and

20 August 1991.

Between January 1992 and April 1994 the applicant received eight

draft orders for armed military drills with which he did not comply.

The applicant alleges that he has always received the draft orders too

late, namely less than 30 days before his enlistment, and that,

therefore, he did not have the opportunity of being recognised as a

conscientious objector (see below in "Relevant domestic law").

On 13 April 1994 the applicant was convicted of insubordination

and sentenced to 6 months' imprisonment by the Nicosia Military Court.

On 19 April 1994 the applicant lodged an appeal against his

conviction and sentence before the Supreme Court (Anotato Dikastirio)

of Cyprus. He stressed that he is a conscientious objector and argued

on the contents and meaning of Article 10 of the Cypriot Constitution

which is similar to Article 4 of the Convention.

On 29 July 1994 the Supreme Court of Cyprus rejected the

applicant's appeal but ordered his release from prison on the ground

that the inflicted sentence was "excessive". It also found that the

applicant had refused to comply with Law No. 2/1992.

2. Relevant domestic law

A. Article 10 of the Cypriot Constitution reads as follows:

"1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory

labour.

3. For the purpose of this Article the term "forced or

compulsory labour" shall not include:

(...)

(b) any service of a military character or, in case of

conscientious objectors, provided that they have been

recognised by law, service exacted instead of

compulsory military service.

(...)"

B. Article 12 of the Cypriot Constitution reads as follows:

"1. No person shall be held guilty of any offence on account of

any act or omission which did not constitute an offence under the

law at the time when it was committed (...).

2. A person who has been acquitted or convicted of an offence

shall not be tried again for the same offence. No person shall

be punished twice for the same act or omission except where death

ensues from such act or omission.

(...)"

C. Article 18 para. 1 of the Cypriot Constitution reads as follows:

"Every person has the right to freedom of thought, conscience

and religion."

D. According to Article 22 of National Guard Law codified on

15 September 1984 (Article 8 of Law No. 22/1978), "any person who being

liable to do so ... refuses to present himself or does not comply with

any draft order ... is guilty of an offence and liable to an

imprisonment not exceeding two years and/or to a fine not exceeding

£500".

E. On 17 January 1992 Law No. 2/1992 recognised conscientious

objection to the performance of military service, providing that

conscripts who wish to be recognised as conscientious objectors must

file an application to the competent Minister at least 30 days before

the date of their enlistment (Article 2, para. 3).

COMPLAINTS

1. The applicants complain that the last five draft orders the first

applicant received and the last eight draft orders the second applicant

received amounted to compulsory labour in breach of Article 4 of the

Convention. In this respect the applicants submit that they were

compelled to military service in a country where conscientious

objectors are recognised.

2. The applicants complain that they were deprived of their liberty

in breach of Article 5 para. 1 a) of the Convention. In this respect

they submit that they are constantly under threat of punishment and

that they were convicted several times for the same reason in breach

of the principle of "ne bis in idem", guaranteed by Article 4 of

Protocol No. 7.

3. The applicants complain that on 1 July 1993 and 13 April 1994

respectively they were convicted for acts which, given the Law

No. 2/1992, did no longer constitute a criminal offence under Cypriot

law, in breach of Article 7 of the Convention.

4. The first applicant alleges that the preparation of the "social

report" concerning his personality amounts to a violation of his right

to private and family life, in breach of Article 8 of the Convention.

5. The applicants complain that the prosecutions and incarcerations

to which they were subjected aimed at forcing them to alter the

contents of their conscience and religion. They allege that their right

to freedom of religion and conscience guaranteed by Article 9 para. 1

of the Convention has been violated.

The applicants further claim that the military authorities'

insistence on prosecuting them amounts to degrading treatment

prohibited by Article 3 of the Convention.

The applicants also submit that they were prevented from enjoying

their private and family life in breach of Article 8 of the Convention.

The first applicant also submits that he was prevented from finding an

employment in breach of Article 1 of Protocol No. 1.

The applicants finally allege that they have been victims of

discriminatory practice, singling out Jehovah's Witnesses, in breach

of Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 24120/94 was introduced on 5 April 1994 and

registered on 11 May 1994. Application No. 25506/94 was introduced on

10 October 1994 and registered on 27 October 1994.

On 20 February 1995 the Commission decided to communicate the

applications to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations on application No. 24120/94

were submitted on 27 April 1995 and those on application No. 25506/94

on 19 April 1995. On 9 August 1995 the Government submitted

supplementary observations on application No. 25506/94. The first

applicant replied on 22 June 1995 and the second applicant replied on

13 June 1995.

By letter dated 16 October 1995 the applicants' lawyer informed

the Secretariat that after various discussions with the Cypriot

authorities the applicants have decided to withdraw their applications.

REASONS FOR THE DECISION

1. Having regard to the similar nature of the issues raised, the

Commission decides to join the present applications under Rule 35 of

its Rules of Procedure.

2. On 16 October 1995 the applicants' lawyer informed the

Secretariat that after various discussions with the Cypriot authorities

the applicants have decided to withdraw their applications.

In these circumstances the Commission finds that the applicants

no longer intend to pursue their applications. It further considers

that respect for Human Rights as defined in the Convention does not

require it to continue the examination of the applications.

It follows that the applications may be struck off the list of

cases pursuant to Article 30 para. 1 (a) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO JOIN APPLICATIONS Nos. 24120/94 and 25506/94;

DECIDES TO STRIKE THE APPLICATIONS OUT OF THE LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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PETROU AND KONSTANTINOU v. CYPRUS

PETROU AND KONSTANTINOU v. CYPRUS

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