GEORGIADIS v. GREECE
Doc ref: 21522/93 • ECHR ID: 001-1971
Document date: October 10, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 21522/93
by Anastasios GEORGIADIS
against Greece
The European Commission of Human Rights sitting in private on
10 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
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 27 February 1993
by Anastasios GEORGIADIS against Greece and registered on 11 March 1993
under file No. 21522/93;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
13 December 1993 and the observations in reply submitted by the
applicant on 17 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1963, and 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 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.
On 11 September 1991, the applicant lodged an application to 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 are not a known religion.
On 7 October 1991 the applicant lodged an administrative appeal
to the Director for Recruitment of the General Headquarters for
National Defence (G.*.*.O.*). 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.
The applicant presented himself at the Nafplio centre, as
ordered, but refused to enlist, invoking his status as 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 on 29 January 1992 by the
competent military justice authorities. The order for his detention on
remand was renewed and he was transferred to the military prison of
Avlona.
On 13 February 1992, the applicant lodged an appeal before the
Council of State (Symv*ulio tis *pikrateias) asking for the annulment
of the decision of 18 December 1991 of the Director for Recruitment of
the General Headquarters for National Defence.
On 16 March 1992, the Athens Military Court acquitted the
applicant on the ground that he was exempted from military service,
being a minister of a known religion. 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. He was committed for trial on 15 April 1992.
On 8 May 1992, the Athens Military Court, expressing doubts as
to the applicant's intention to commit the criminal offence of
insubordination, acquitted him. It further decided that no compensation
should be granted to the applicant for his detention on remand, since
this detention was due to his gross negligence.
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.
On 7 July 1992, the Council of State annulled the decision of the
General Headquarters for National Defence of 18 December 1991 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 27 July 1992, the applicant was provisionally released from
the military prison of Thessaloniki pursuant to a decision of the
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.
On 10 September 1992, the Military Court of Thessaloniki
acquitted the applicant, considering that he lacked the intention of
committing the offence of insubordination. It further found that the
applicant was not entitled to compensation, since his detention on
remand was due to his gross negligence.
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.
2. Article 52 para. 2 of the presidential decree 18/1988, which
codified the legal rules regarding the Council of State, reads as
follows:
"A committee, established ad hoc by the Chairman of the
Council of State and composed of the Chairman or the member
of the Council who replaces him in accordance with the
applicable rules, the rapporteur of the case and another
member of the Council, may, at the request of the person
who filed the action for annulment, decide in chambers to
suspend the execution of the impugned act. Reasons must be
provided."
Three-member committees of the Council of State have on many
occasions suspended the execution of administrative acts ordering
somebody to enlist in the armed forces. Most of these decisions were
issued in respect of persons who were challenging before the Council
of State the refusal of the administration to exempt them from military
service on the ground that they were students (decisions 263/90,
434/92, 530/92, 570/92, 633/92, 204/93 and 472/93). Some of them,
however, concerned religious ministers whom the administration had also
refused to exempt (decisions 326/90, 457/92 and 203/93).
3. 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 ....".
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:
"The court which heard the case shall decide on the State's
obligation to pay compensation in by virtue of a separate
decision issued at the same time as the verdict upon an
application submitted orally by the person who has been
acquitted. However, the court may also issue such a
decision proprio motu ........
The decision regarding of 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 .......".
COMPLAINTS
1. The applicant alleges that he was prosecuted twice for an offence
of which he had previously been acquitted. He invokes Article 4 para.
1 of Protocol No 7.
2. The applicant complains that he was deprived of his liberty in
breach of Article 5 para. 1 of the Convention. In this respect he
submits that he was provisionally detained without any reasonable
suspicion that he had committed any offence.
The applicant also complains that the three consecutive
prosecutions and incarcerations to which he was subjected aimed at
forcing him to alter the contents of his conscience and religion. He
alleges that his right to freedom of religion and conscience guaranteed
by Article 9 para. 1 of the Convention has been violated.
He further claims that the military authorities' insistence in
prosecuting him amounts to degrading treatment prohibited by Article
3 of the Convention.
In this context, the applicant finally alleges that he has been
a victim of a discriminatory practice, singling out Jehovah's
Witnesses, in breach of Article 14 of the Convention.
3. The applicant next complains that he did not receive compensation
for having been unlawfully detained and invokes Article 5 para. 5 of
the Convention.
4. The applicant finally complains that the Military Courts issued
a final decision on his right to compensation without hearing him, in
breach of Articles 6 para. 1 and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 February 1993 and registered
on 11 March 1993.
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 17
February 1994 the applicant submitted his observations in reply.
THE LAW
1. The applicant alleges that he was prosecuted twice for an offence
of which he had previously been acquitted. He invokes Article 4 para.
1 of Protocol No 7 (P7-4-1).
The Commission notes that Greece has ratified Protocol No. 7 but
has not recognised the right of individual petition in respect of the
rights guaranteed therein.
This part of the application must, therefore, be rejected as
being incompatible with the provisions of the Convention, pursuant to
Article 27 para. 2 (Art. 27-2).
2. The applicant complains of a violation of Articles 3, 5 para. 1,
and 9 (Art. 3, 5-1, 9) of the Convention, taken on their own and in
combination with Article 14 (Art. 3, 5-1, 9+14), in that the Greek
military authorities committed him for trial and detained him on remand
three times for an offence he could not have committed, because he was
a Jehovah's Witness.
Article 3 (Art. 3) of the Convention prohibits inhuman and
degrading treatment. Article 5 para. 1 (Art. 5-1) guarantees the right
to liberty and security of person. Article 9 (Art. 9) ensures freedom
of religion and Article 14 (Art. 14) secures the enjoyment of
Convention rights and freedoms without discrimination.
As a preliminary point the Government contend that the applicant
failed to comply with the requirements of Article 26 (Art. 26) of the
Convention. The applicant sought the annulment by the Council of State
of the decision of the army authorities refusing to recognise his
status as a minister of a known religion and to exempt him from the
military service. Nevertheless, he surrendered himself to the military
authorities, without attempting to seize beforehand the competent
three-member committee of the Council of State which could have
suspended the execution of the decision of the army authorities
ordering him to enlist in the armed forces. Moreover, he failed to
request his provisional release from the competent military courts,
when placed in detention on remand on two occasions, between 20 January
and 16 March 1992 and between 4 April and 8 May 1992. As each period
of detention related to a distinct criminal offence, the Government
further submit that the application has not been submitted within six
months from the applicant's release on 16 March 1992 and on 8 May 1992.
As regards the third period of detention on remand ordered on
22 May 1992, the applicant applied and obtained his provisional release
on 27 July 1992. As a result, he cannot claim to be a victim of a
violation of the Convention.
In response, the applicant submits that a request for the
suspension of the execution of an administrative act cannot, as a
matter of principle, be considered to be a remedy within the meaning
of Article 26 (Art. 26) of the Convention. He argues that an order to
suspend the execution of the administrative decision would not have
necessarily resulted in his provisional release, the administrative
proceedings in his case being separate from the criminal ones, and the
army authorities having demonstrated in his case a complete lack of
respect for the case-law of the Council of State. The applicant further
submits that, at the time of his prosecution, the three-member
committee of the Council of State had not developed the practice of
suspending the enforcement of decisions ordering religious ministers
to enlist. In any event, the successive orders of detention on remand
made it impossible for him to lodge such an application. Finally, by
way of general observation, he submits that, if the Government were
sure that the Council of State would have ruled in his favour, they
should not have allowed the army authorities to act in the manner they
did.
The applicant further 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 accordance with a consistent court practice in Greece, the
provisional release of accused persons is never ordered one or two
months before the trial. He also claims that, contrary to what the
Government argue, in July 1992 he was released further to a telephone
order, issued after the Council of State had ruled in his favour. As
a matter of fact, he had never applied for his release and the military
court simply rubber-stamped the telephone order. As regards the
Government's argument concerning the six months' rule, the applicant
submits that the three periods of detention were inextricably related
to each other. As a result, the criminal court which acquitted him on
10 September 1992 could have remedied the violation by granting him
appropriate compensation.
The Commission considers that, in the circumstances of the
present case, issues could arise under Articles 3, 5 para. 1, 9 and/or
14 (Art. 3, 5-1, 9, 14) of the Convention. However, Article 26
(Art. 26) of the Convention only permits the Commission to deal with
a matter after all domestic remedies have been exhausted. It recalls
that the Court in its Cardot judgment held as follows:
".... Article 26 (Art. 26) .... does not require merely
that applications should be made to the appropriate
domestic courts and that use should be made of remedies
designed to challenge decisions already given. It normally
requires also .... that any procedural means which might
prevent a breach of the Convention should have been used"
(Eur. Court H.R., Cardot judgment of 19 March 1991, Series
A no. 200, p. 18, para. 34).
The Commission notes that the applicant failed on several
occasions to seek the appropriate protection of the judicial
authorities: He did not apply to the Council of State for a suspension
of the execution of the decision ordering him to enlist in the army,
although he had the time to do so, given that this decision was issued
after the applicant's application for exemption had been refused and
at least one month before the date of his enlistment. There was
adequate precedent for such a course because the three-member committee
of the Council of State had at that time already ordered the suspension
of at least one decision ordering a religious minister to enlist.
Moreover, the applicant never applied to the competent military
criminal courts for temporary release after he had been placed in
detention on remand (cf. mutatis mutandis, No. 9172/80, Dec. 17.12.81,
D.R. 27 p. 222).
In these circumstances, the Commission considers that, insofar
as his complaints under Articles 3, 5 para. 1, 9 and 14
(Art. 3, 5-1, 9, 14) 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.
3. The applicant next complains that he did not receive compensation
for his allegedly unlawful detention. He invokes Article 5 para. 5
(Art. 5-5) of the Convention, which guarantees an enforceable right to
compensation for a breach of the right to liberty.
The Government submit that, insofar as the first two periods of
detention on remand are concerned, the application has not been
submitted within the six month time-limit laid down in Article 26
(Art. 26) of the Convention. Moreover, the applicant never requested
compensation and, as a result, has not exhausted domestic remedies.
Finally, they contend that Article 5 para. 1 (Art. 5-1) has not been
violated, since the acquittal of the applicant does not necessarily
render his pre-trial detention unlawful.
The applicant submits that his detention on remand was clearly
unlawful. As regards the question of compliance with the six months'
rule in Article 26 (Art. 26) of the Convention, he refers to the
arguments he submitted in connection with the previous complaints. As
regards the question of exhaustion of domestic remedies under Article
26 (Art. 26), the applicant observes 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 circumstances of his case, however, 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 Commission recalls that, in accordance with its constant
case-law, complaints based on Article 5 para. 5 (Art. 5-5) of the
Convention may be examined directly by the Commission only if the
domestic authorities have found a violation of any of the provisions
of paragrapphs 1 to 4 of this Article. In the absence of such a
finding, the Commission itself must first establish the existence of
such a violation (No. 7950/77, Dec. 4.3.80, D.R. 19 p. 213). In the
present case, however, no such violation has been established by either
the domestic authorities or the Commission. In the absence of such a
finding, no issue arises under Article 5 para. 5 (Art. 5-5) of the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, the applicant complains that the military courts' final
rejection of his claim to compensation without hearing him was in
breach of Articles 6 and 13 (Art. 6, 13) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees the
right to a fair and public hearing in the determination of civil rights
and obligations. Article 13 (Art. 13) ensures effective national
remedies for Convention breaches.
First, the Government contend that the applicant has not
complied with the requirements of Article 26 (Art. 26) of the
Convention. He never applied for compensation. The application was,
moreover, submitted more than six months after the termination of the
first two criminal trials.
The Government further submit that Article 6 (Art. 6) of the
Convention does not apply to the proceedings in question. The claim of
the applicant 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 for the reasons mentioned
above. 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 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
of being 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.
The Commission notes that the applicant was prosecuted and placed
in pre-trial detention on all three occasions as a result of the army
authorities' failure to recognise his status as a minister of a known
religion. Although the relevant proceedings were formally distinct
under national law, the Commission considers them sufficiently related
to each other to be able to examine their fairness as a whole. The last
decision having been given on 10 September 1992, the Commission
considers that the application has been introduced within the six
months' time-limit laid down in Article 26 (Art. 26) of the Convention.
The Commission further 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.
For these reasons, the Commission,
- unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the issue arising from the military courts' rejection
of the applicant's compensation claim without a hearing and
the inadequate reasoning of the relevant decisions;
- by a majority,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)