Information Note on the Court’s case-law 17

April 2000

Thlimmenos v. Greece [GC] - 34369/97

Judgment 6.4.2000 [GC]

Article 14

Discrimination

Obligation of State to treat differently persons convicted of offences committed because of their religious beliefs: violation

Facts – In 1983 the applicant, a Jehovah's Witness, was convicted by a court martial of insubordination for having refused to wea r a military uniform at a time of general mobilisation. He served half of a four year prison sentence. In 1988 he came second out of sixty in a competitive examination for the appointment of twelve chartered accountants. However, the relevant board refused to appoint him, on the ground that he had been convicted of a felony. The applicant appealed to the Council of State, maintaining, inter alia , that his offence was less serious than a felony, but the appeal was ultimately rejected in June 1996.

Law – Gove rnment's preliminary objection: A claim by the applicant under a 1997 law which allowed those convicted of insubordination to apply for recognition as conscientious objectors and have their convictions deleted from their criminal record would have been exa mined by a committee advised by the Ministry of Defence, and neither it nor the Ministry was obliged to grant the request. Moreover, it was not possible to obtain reparation. The same considerations apply to a request for a pardon. In so far as it can be d eemed that the Government wish to raise a victim issue, they did not do so at the admissibility stage and are therefore estopped.

Article 14 taken together with Article 9: The applicant was treated differently on the ground of his status as a convicted per son and such a difference does not generally come within the scope of Article 14 in so far as it relates to access to a particular profession, a right which is not guaranteed by the Convention. However, the applicant's complaint concerns rather the fact th at no distinction was made between those convicted of offences committed exclusively because of their religious beliefs and those convicted of other offences, and the facts complained of do fall within the ambit of Article 9. The right not to be discrimina ted against is also violated when the State without objective and reasonable justification fails to treat differently persons whose situation is significantly, and Article 14 is therefore applicable. As a matter of principle, the State has a legitimate int erest in excluding some offenders from the profession of chartered accountant, but a conviction for refusing on religious grounds to wear a military uniform cannot imply dishonesty or moral turpitude likely to undermine the ability to exercise that profess ion. The exclusion of the applicant on the ground that he was unfit for the profession was therefore not justified. He had in fact served a prison sentence and the further sanction was disproportionate. It did not pursue a legitimate aim and there was no o bjective and reasonable justification for not treating him differently from others convicted of a felony. While the board had no choice but to apply the law, it was the State's enactment of the legislation without appropriate exceptions which violated the applicant's rights.

Conclusion : violation (unanimously).

Article 9 taken alone: In view of the above conclusion, the Court considered it unnecessary to examine this complaint separately.

Conclusion : not necessary to examine (unanimously).

Article 6 § 1 ( le ngth of proceedings ): Although the profession at issue was regulated by administrative law, it was a liberal profession and the proceedings determined the applicant's civil rights. The proceedings lasted seven years, one month and twenty days and there wer e periods of inactivity which the Government explained only with reference to the court's case-load.

Conclusion : violation (unanimously).

Article 41: The Court considered that as the applicant had not been unemployed during the period in question and had not shown that he would have earned more as a chartered accountant, no award should be made in respect of alleged pecuniary loss. It awarded the appli cant six million drachmas (GRD) in respect of non-pecuniary loss and also made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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