Resolution ResDH(2004)82

concerning the judgments of the European Court of Human Rights in cases concerning unlawful detention of ministers of Jehovah ' s Witnesses and unfair compensation proceedings (Tsirlis and Kouloumpas v. Greece , Georgia dis v. Greece , judgments of 29 May 1 997)

(Adopted by the Committee of Ministers on 22 December 2004 at the 906th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases of Tsirlis and Kouloumpas and of Georgia dis (delivered on 29 May 1 997) and transmitted the same day to the Committee of Ministers;

Recalling that both cases originated in applications No. (19233/91, 1 9234/9 1 and 2 1 522/93) against Greece lodged with the European Commission of Human Rights on 26 November 1 99 1 and on 27 February 1 993 respectively under former Article 25 of the Convention by Mr Dimitrios Tsirlis, Mr Timotheos Kouloumpas and Mr Anastassios Georgia dis, all Greek nationals and ministers of Jehovah ' s Witnesses, and that the Commission declared admissible their complaints relating notably to their allegedly unlawful detention following their refusal to abide by the orders of the Greek military authorities and/or to the fairness of subsequent proceedings before the Greek courts with a view to obtaining compensation for unlawful detention;

Recalling that the cases were brought before the European Court by the European Commission of Human Rights on 1 7 April 1 996;

Whereas in its judgments of 29 May 1 997 the Court, unanimously:

-held that there had been a violation of Article 5, paragraph 1, of the Convention in the case of Tsirlis and Kouloumpas due to the applicants ' unlawful detention ordered by the military courts contrary to the clearly established case law of the Supreme Administrative Court exempting ministers of a known religion from military service, and of Article 5, paragraph 5, of the Convention due to the lack of compensation for this unlawful detention;

-held that there had been a violation of Article 6, paragraph 1, of the Convention in the case of Georgia dis due to the military courts ' refusal, by a decision taken proprio motu , without hearing and adequate reasoning, to grant the applicant compensation for his allegedly unlawful detention;

-held that the respondent state was to pay the applicants, within three months, certain amounts for just satisfaction (see details in Appendix), and that simple interest at an annual rate of 6% would be payable from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 1 1 , these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the Greek government to inform it of the measures which had been taken in consequence of the European Court ' s judgments, having regard to Greece ' s obligation under former Article 53 and under Article 46 of the Convention to abide by them;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual measures taken to erase the consequences of the violations and the general measures taken in order to prevent new violations of the same kind as those found in the present judgments (see Appendix);

Having satisfied itself that the Greek government paid the applicants on 26 June and on 29 August 1 997, i.e. within the time-limits set, the sums awarded as just satisfaction by the European Court in its judgments of 29 May 1 997 (see details in Appendix);

Declares, after having taken note of the information supplied by the Government of Greece, that it has exercised its functions under former Article 54 of the Convention in these cases.

Appendix to Resolution ResDH(2004)82

Information provided by the Government of Greece during the examination of the cases Tsirlis and Kouloumpas, and Georgia dis

by the Committee of Ministers

I Payment of just satisfaction

Case

Application No

Date of judgment

Amounts awarded by the Court

Time-limit for payment

Date of payment

Tsirlis and Kouloumpas

No. 1 9233/9 1 ; 1 9234/9 1

29/05/ 1 997

Pecuniary and non-pecuniary damages:

Tsirlis: 8 million drachmas; Kouloumpas: 7 300 000 drachmas

Costs and expenses (global sum): 2 million drachmas

29/08/ 1 997

26/06/ 1 997

Georgia dis

2 1 522/93

29/05/ 1 997

Costs and expenses: 750 000 drachmas

29/08/ 1 997

29/08/ 1 997

II Individual measures to allow restitutio in integrum

In the case of Tsirlis and Kouloumpas, the European Court awarded the applicants just satisfaction for their unlawful detention covering both pecuniary and non-pecuniary damage. No further measure was thus necessary.

In the case of Georgia dis, where the European Court only found a violation of Article 6 paragraph 1, due to unfairness of domestic proceedings, the question of reopening of these proceedings with a view to the adequate compensation of the applicant arose.

On 1 9 December 2000 Law 2865/2000 was promulgated and amended the Code of Criminal Proceedings to allow the reopening of domestic criminal proceedings in cases where the European Court has found a violation of a right concerning the fairness of a trial or of a substantive provision of the law (new Article 525, paragraph 1 (5), of the Code). However, this new provision only applied to convicted persons and did not allow the reopening in the applicants ' cases, since the competent military courts quashed the applicant ' s conviction in 1 99 1 and 1 992 respectively.

On 1 1 October 2002 the Code of Criminal Procedure was further amended by Law 3060/2002 which introduced new Article 525A allowing all those acquitted, such as the applicants, to ask for the reopening of the domestic proceedings concerning their compensation for illegal detention in cases where the European Court has found a violation of the Convention due to the lack of fairness of domestic proceedings . As a result of the latter amendment, Mr Georgia dis has been entitled to a reopening of the impugned criminal proceedings concerning compensation for detention so as to erase the consequences of the violation found by the European Court in his case.

III General measures

Preventing unlawful detention

As regards the problem of unlawful detention of ministers of Jehovah ' s Witnesses raised by the present cases, the Government recalls that this violation was caused by the military authorities ' failure in early 1 990 ' s to recognise these persons ' right to be exempted from military service as ministers of a “known religion” in accordance with the Greek Supreme Administrative Court ' s case law. Following the wide dissemination of the European Court ' s judgments (see below), the military authorities ' practice in this respect was changed and put in full conformity with the Supreme Administrative Court ' s case-law stating that no minister of Jehovah ' s Witnesses is under an obligation to perform military service. As a result, the problem of detention of ministers of Jehovah ' s Witnesses for their refusal to comply with military authorities ' orders does no longer exist.

Constitutional and legal reforms ensuring adequate compensation for unlawful detention

As regards the violations of Article 5, paragraph 5, and Article 6, paragraph 1 , found by the European Court, they largely resulted from the application of the provisions of the Code of Criminal Procedure then in force, namely:

- Article 535, paragraph 1 , providing that the state did not have any obligation to pay compensation if the person concerned was, intentionally or by gross negligence, responsible for his or her own detention;

- Article 536, paragraphs 1 and 2, allowing courts to decide proprio motu the question of compensation for unlawful detention without a hearing and with inadequate reasoning.

Following the European Court ' s judgments, Greece adopted constitutional and statutory reforms to remedy the above problems.

As regards the absence of reasoning in judicial decisions, Article 93, paragraph 3, of the Constitution was amended in April 200 1 to explicitly require that judicial decisions be supported by detailed reasoning and to authorise the law to provide for sanctions in case of non-respect for this rule.

As regards the fairness of the proceedings, new Law (29 1 5/200 1 ) amended Articles 535 and 536 of the Code of Criminal Procedure: the new provisions no longer exclude the possibility of compensation in cases of detention due to the detainee ' s “gross negligence” and obligate criminal courts to give reasons for their decisions after having heard the persons concerned and the public prosecutor.

These new provisions together with the direct effect of the Convention and the European Court ' s judgments in Greek law (see in particular Resolution ResDH(99)714 concerning the case of Papageorgiou against Greece and Resolution ResDH(2004)2 concerning the case of Agoudimos and Cefallonian Sky Shipping Co. against Greece ) should effectively prevent new similar violations of the Convention.

Publication and dissemination of the judgments

The European Court judgment in Tsirlis and Kouloumpas was disseminated to the Presidents and Prosecutors of all military courts of Greece , in order to draw these authorities ' attention to their obligations under the Convention. It was also published in Diki, 29/ 1 998 (p. 9 1 5) and a commentary on it was published in Poiniki Dikaiosyni, 6/ 1 998 (p. 665), both journals widely read by lawyers and judges. The judgment of Georgia dis was disseminated through a Ministry of Defence circular to presidents and public prosecutors of the domestic military tribunals and recruitment offices, and through a Ministry of Justice circular to the president and public prosecutor of the Court of Cassation, as well as to the presidents and public prosecutors of the appeal and first instance courts.

IV Conclusion

The government considers that, given the individual and general measures mentioned above, Greece has satisfied its obligations under former Article 53 (new Article 46, paragraph 1) of the Convention to erase the consequences of the violations found and prevent new similar violations in the future.