KOULOUMPAS v. GREECE
Doc ref: 19234/91 • ECHR ID: 001-2251
Document date: September 4, 1995
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AS TO THE ADMISSIBILITY OF
Application No. 19234/91
by Timotheos KOULOUMPAS
against Greece
The European Commission of Human Rights sitting in private on
4 September 1995, 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
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
P. LORENZEN
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 application introduced on 26 November 1991
by Timotheos KOULOUMPAS against Greece and registered on
19 December 1991 under file No. 19234/91;
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 Commission's decision of 30 August 1993 to communicate the
application;
- the observations submitted by the respondent Government on
13 December 1993 and the observations in reply submitted by the
applicant on 24 February 1994;
- the Commission's decision of 29 November 1994 to communicate the
applicant's complaints under Articles 3, 9 and 14 of the
Convention;
- the additional observations submitted by the respondent
Government on 27 February 1995 and the observations in reply
submitted by the applicant on 2 May 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1964, and is resident
in Athens. Before the Commission he is represented by Mr P. Bitsaxis,
an attorney at law practising in Athens.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows:
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.
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.
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.
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.
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.
On 30 May 1990, the Permanent Military Court (Stratodikio) of
Athens found the applicant guilty of insubordination and sentenced him
to four years' imprisonment.
On 1 June 1990 the applicant appealed against this decision
before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).
On 12 July 1990 the applicant's appeal came up for hearing before
the Courts-Martial Appeal Court. 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 in order 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.
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.
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 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 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 .... ?"
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.
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.
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.
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.
On 29 May 1991 the Courts-Martial Appeal Court, composed of five
military judges, heard 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?"
Three members answered the question in the negative. Two members
considered that "the accused is not a religious minister". As a result,
the applicant was acquitted on the basis that "there was no act". The
Courts-Martial Appeal Court further decided that no compensation should
be granted to the applicant for the time he spent in prison between 6
March 1990 and 29 May 1991, because his detention "was due to his gross
negligence".
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 and practice
1. Article 5 of law 1763/1988 exempts all ministers of "known
religions" from military service.
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 3601/90
the Council of State expressly upheld the right of Jehovah's Witnesses
religious ministers to be exempted from military service.
2. Article 533 para. 2 of the Code of Criminal Procedure reads as
follows:
"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 of the same Code provides the following:
"(t)he 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 of the Code read as follows:
"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 of the Code read as follows:
"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 of the Code provides the following:
"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."
Finally, Article 540 para. 1 of the Code reads as follows:
"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 .......".
3. 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 ......".
COMPLAINTS
1. The applicant complains under Article 5 para. 1 (c) of the
Convention that his detention on remand was unlawful in that he could
not have been reasonably suspected of committing the offence of
insubordination.
2. The applicant complains that his conviction by the Permanent
Military Court of Athens was arbitrary. As a result, he was deprived
of his liberty in breach of Article 5 para. 1 (a) of the Convention.
3. The applicant complains under Article 5 para. 5 of the Convention
that he did not receive compensation for having been unlawfully
detained.
4. The applicant complains that the Courts-Martial Appeal Court
decided on his claim for compensation without hearing him in breach of
Article 6 para. 1 of the Convention. He also complains that, as a
result of the judgment of the Courts-Martial Appeal Court, he was
deprived of an effective remedy with regard to his compensation claim
in breach of Article 13 of the Convention.
5. The applicant complains that his conviction by the Permanent
Military Court of Athens was arbitrary. As a result, Article 7 of the
Convention was violated.
6. When answering the Government's observations, the applicant
further complained of a violation of Articles 3, 9 and 14 of the
Convention. He claimed that he had been subjected to inhuman and
degrading treatment and that he had been prosecuted for his religious
beliefs and deprived, during his detention, of every opportunity to
perform his duties as a religious minister and practise his religion
together with the other followers of his creed. He also claimed that
the ministers of the Greek Orthodox Church were exempted from military
service without difficulty.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 November 1991 and registered
on 19 December 1991.
On 30 August 1993 the Commission decided to communicate the
application to the respondent Government and to request them to submit
their written observations on admissibility and merits.
The Government's observations were submitted on 13 December 1993
after an extension of the time-limit fixed for this purpose. On
24 February 1994 the applicant submitted his observations in reply,
including new complaints under Articles 3, 9 and 14 of the Convention.
On 29 November 1994 the Commission decided to communicate these
complaints to the Government.
The Government's additional observations were submitted on
27 February 1995. On 2 May 1995 the applicant submitted his
observations in reply.
THE LAW
1. The applicant complains under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention that his detention on remand between 6
March and 30 May 1990 was unlawful in that he could not have been
reasonably suspected of committing the offence of insubordination.
Article 5 para. 1 (c) (Art. 5-1-c) 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:
.......
c. the lawful arrest or detention of a person
effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing
after having done so ....."
As a preliminary point, the Government contend that the applicant
failed to comply with the requirements of Article 26 (Art. 26) of the
Convention, in that he did not request his provisional release from the
competent military courts. The Government further submit that the
applicant's complaints have not been submitted within the six months
period provided for under Article 26 (Art. 26) of the Convention, which
must be calculated from the date of his conviction. In any event, the
Government claim that the applicant's complaints are manifestly ill-
founded.
In response, the applicant argues that, as a matter of principle,
an application for provisional release cannot be considered to be a
remedy for the purposes of Article 26 (Art. 26) of the Convention.
Moreover, in the circumstances of the particular case, such an
application had no prospects of success, given the general stance of
the military authorities and courts vis-à-vis the problem of
conscientious objectors. The applicant further submits that the six
months period can only be calculated from the date when his acquittal
became final.
The Commission does not consider it necessary to examine whether
the applicant's allegations disclose an appearance of a violation of
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. The Commission
recalls that, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted.
It further recalls its case-law to the effect that a request for
provisional release is in principle an effective remedy in the case of
persons complaining under Article 5 para. 1 (c) (Art. 5-1-c) of their
detention on remand (No. 21522/93, Dec. 10.10.94, unpublished and,
mutatis mutandis, No. 9172/80, Dec. 17.12.81, D.R. 27 p. 222).
The Commission notes that the applicant never applied to the
competent military criminal courts for temporary release after he had
been placed in detention on remand. Nor has he produced any evidence
to the effect that such an application could not constitute, in the
circumstances of his case, an effective remedy.
In these circumstances, the Commission considers that, insofar
as his complaints regarding pre-trial detention are concerned, the
applicant has not exhausted domestic remedies as required by Article
26 (Art. 26) of the Convention. It follows that this aspect of the case
must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The applicant complains that his conviction by the Permanent
Military Court of Athens was arbitrary. As a result, his detention
between 30 May 1990 and 29 May 1991 was not lawful within the meaning
of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
Article 5 para. 1 (a) (Art. 5-1-a) 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 ......."
The Government submit that the applicant's complaints under
Article 5 para. 1 (a) (Art. 5-1-a) are manifestly ill-founded, because
he was detained following a conviction by a competent court.
The Commission considers that the complaint 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.
3. The applicant complains under Article 5 para. 5 (Art. 5-5) of the
Convention that he did not receive compensation for having been
unlawfully detained.
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."
The Government submit that the applicant never requested
compensation and, as a result, has not exhausted domestic remedies.
They further contend that his detention was lawful under Article 5
para. 1 (Art. 5-1) of the Convention and he was in any event
responsible for his detention, because he did not take timely action
to obtain his exemption from military service. Although the applicant
became a religious minister in November 1987, he did not apply for
exemption before November 1989.
The applicant submits that his detention was clearly unlawful,
that he has exhausted domestic remedies and that his right to ask for
compensation was frustrated by the decision of the military court of
appeal.
The Commission considers that the complaint 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 military courts' final rejection
of his claim for compensation without hearing him was in breach of
Articles 6 and 13 (Art. 6, 13) of the Convention. When communicating
the application, the Commission also invited observations under Article
6 para. 1 (Art. 6-1) of the Convention in connection with the failure
of the Courts-Martial Appeal Court to supply reasons for its decision
that the detention was due to the applicant's gross negligence.
Article 6 para. 1 (Art. 6-1) of the Convention provides the
following:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ..."
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."
The Government submit that the applicant has not complied with
the requirements of Article 26 (Art. 26) of the Convention, because he
never applied for compensation.
They further argue that Article 6 (Art. 6) of the Convention does
not apply to the proceedings in question. The issue whether the
applicant was entitled 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 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.
The Government finally argue that the courts did not hear the
public prosecutor before deciding, proprio motu, not to grant the
applicant compensation. The majority of the judges being ordinary
officers, the military criminal courts which tried the applicant
resemble jury courts which do 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.
The applicant submits that he has complied with the requirements
of Article 26 (Art. 26) of the Convention. He observes in this
connection 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. However, in casu the
applicant claims that the military courts effectively prevented him
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.
The applicant further argues that the rules governing
compensation for detention on remand 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
material and moral damage; persons depending on the detainee may sue
as well; the State may in turn sue the civil servants who, acting
illegally, became responsible for the detention.
Finally, the applicant submits that Article 6 (Art. 6) of the
Convention has been violated in that he was never given the opportunity
to be heard in connection with his right to 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. Article 13 (Art. 13) of the Convention has
also been violated in that he could not lodge an appeal against the
decision of the military court which denied him compensation.
The Commission notes the parties' observations on the question
of exhaustion of domestic remedies and, in particular, their
disagreement as to whether the applicant had been given the chance to
apply for compensation. It considers that this question is related to
the substance of the applicant's complaints under Articles 6 and 13
(Art. 6, 13) of the Convention. However, these complaints raise 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.
5. The applicant complains that his conviction by the Permanent
Military Court of Athens was arbitrary. As a result, Article 7
(Art. 7) of the Convention was violated.
Article 7 para. 1 (Art. 7-1) of the Convention provides the
following:
"No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed ....".
The Government argue that the applicant cannot claim to be a
victim of a violation of Article 7 (Art. 7), as he was acquitted and
that, in any event, he had been convicted at first instance of a
criminal offence which was provided for under domestic law.
The Commission notes that the applicant was finally acquitted.
As a result, this complaint must be rejected as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant complains that he was persecuted because of his
religious beliefs, that he was deprived, during his detention, of every
opportunity to perform his duties as a religious minister and practise
his religion together with the other followers of his creed and that
he was discriminated against since the ministers of the Greek Orthodox
Church are exempted from military service without difficulty. He
invokes Articles 3, 9 and 14 (Art. 3, 9, 14) of the Convention.
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."
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 3 (Art. 3) of the Convention provides the following:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government argue that the applicant has not exhausted
domestic remedies and has not raised his complaints within the six
months' period provided for in Article 26 (Art. 26) of the Convention.
Moreover, Article 9 (Art. 9) of the Convention does not require
States to exempt religious ministers from military service. The
applicant was imprisoned because he had committed the criminal offence
of insubordination. Under Greek law the offence is committed when a
member of the armed forces refuses to obey a superior's order. The
applicant committed the offence when he refused to obey an officer's
order to wear a military uniform. The court could not take into account
any other facts or considerations.
The Government further argue that the applicant was not
discriminated against on the basis of his 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.
Finally, the Government submit that it could not be argued that
the applicant has been submitted to treatment contrary to Article 3
(Art. 3) of the Convention, given the requirements of this provision
as to the level of severity.
The applicant argues that he has exhausted domestic remedies and
that he has raised in essence his complaints within six months from the
decision of the Courts-Martial Appeal Court which acquitted him.
Contrary to what the respondent Government argue, his conviction was
the direct result of the refusal of the military authorities 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 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. The treatment he was subjected
to reached the threshold of severity required by Article 3 (Art. 3) of
the Convention.
The Commission recalls that, in accordance with its case-law,
domestic remedies have been exhausted if the applicant has submitted
in substance his complaints before the national courts, even if he has
not made particular reference to the Convention (Nos 7299/75 and
7496/76, Dec. 4.12.79, D.R. 18 p. 5). Moreover, the failure to respect
the six month time-limit cannot be held against an applicant who, after
its expiry, raised new complaints based on the facts which have been
submitted within the time-limit (No. 12015/86, Dec. 6.7.88, D.R. 57
p. 108).
The Commission recalls its earlier finding that the applicant did
not exhaust domestic remedies in respect of the period he spent in
detention prior to the first instance judgment. It considers, however,
that the same is not true for part of the period the applicant spent
in detention after his conviction. The applicant appealed against his
conviction and on 27 November 1990 and 7 March 1991 he requested the
Court-Martial to order his provisional release, as he was entitled to
by domestic law. He thus gave the national authorities the opportunity
to redress the situation complained of. Moreover, although the
applicant did not invoke expressly Articles 9 and 14 (Art. 9, 14) of
the Convention before the Council of State and the military courts, he
raised his complaints in substance. The gist of the applicant's
argument before the domestic courts was that he should not have been
treated differently from other religious ministers of known religions
who were exempted from military service.
The Commission further notes that the applicant first referred
to a violation of Articles 9 and 14 (Art. 9, 14) of the Convention in
his letter of 24 February 1994 containing his observations in reply,
i.e. more than six months after the date of the final decision
complained of. However, the complaints under Articles 9 and 14
(Art. 9, 14) of the Convention are based on facts which have been
submitted within the time-limit and form the core of the applicant's
case.
In the light of all the above, the Commission does not consider
that it is prevented, under Article 26 (Art. 26) of the Convention,
from examining the supplementary complaints under Article 9 and 14
(Art. 9, 14) of the Convention submitted by the applicant in his
observations in reply.
The Commission further considers that these complaints raise
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.
As regards, finally, the applicant's complaint under Article 3
(Art. 3) of the Convention, the Commission notes that it is based on
the same facts as his complaints under Articles 9 and 14
(Art. 9, 14) of the Convention. It considers that these aspects of the
application are closely linked together and that the complaint of
Article 3 (Art. 3) of the Convention must be also examined on the
merits.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the applicant's complaints concerning
the lawfulness of his pre-trial detention and his right not
to be convicted on account of any act which did not
constitute a criminal offence under national or
international law at the time when it was committed and,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)