Information Note on the Court’s case-law 199

August-September 2016

Papavasilakis v. Greece - 66899/14

Judgment 15.9.2016 [Section I]

Article 9

Article 9-1

Freedom of conscience

Freedom of thought

Assessment of the genuineness of an objection to military service by commission composed of majority of military officers: violation

Facts – Law no. 3421/2005 on the enlistment of Greek citizens provides for civilian work as an alternative to military service, by placing conscientious objectors at the disposal of the various public services. Such placement is decided by the Ministry of National Defence further to an opinion given by a Special Board, which examines, ei ther on the basis of documents or after hearing the person concerned, whether the conditions are met for conscientious-objector status to be granted. The Law provided for the following composition of the Special Board: two university professors specialisin g in philosophy, social and political sciences and psychology, a member of the State Legal Counsel’s Office as chair, and two high-ranking officers of the armed forces (one from the recruitment unit, the other from the health service); in other words, thre e civilians and two military officers.

When the applicant, who requested conscientious-objector status, appeared before the Special Board, only the chair and the two officers were present. He explained that the main reason for his request was his objection to violence. While he had connections with the Jehovah’s Witnesses, he had not yet been baptised. He also stated that he was prepared to carry out alternative service for fifteen months instead of nine, which was the normal duration of military service. T he Board rejected his request for conscientious-objector status and the Minister of Defence likewise. The applicant appealed against that decision to the Supreme Administrative Court, challenging in particular the composition of the Special Board, but he w as unsuccessful. In 2014 he was ordered to pay a fine of EUR 6,000 for insubordination.

Law – Article 9: As the Court had previously found, States had a positive obligation in such matters which was not confined to ensuring that, under domestic law, there was a procedure for examining requests for conscientious-objector status; that procedure also had to be effective and accessible*. One of the essential conditions for the effectiveness of the procedure was the independence of the individuals conducting it.

Domestic law had clearly provided after careful consideration that the Special Board had to be composed of an equal number of army officers and members of civil society having specific knowledge in such matters, together with a lawyer as chair. Accordingl y, if the Special Board had sat with all of its members present, the majority would have been civilians. However, only the two officers and the chair were present on the day the applicant was interviewed.

As the Court had previously found, concerning a conscientious objector examined by a tribunal composed only of military officers in respect of military offences, the individual could understandably be afraid of appearing before judges belonging to the army , which was basically a party to the proceedings, and could thus have legitimately feared that the tribunal would be unduly guided by biased considerations**.

Moreover, in his recommendation of 2013, the Greek Ombudsman had noted that, while for conscienti ous objectors classified as “religious” the board required no more than a certificate from the religious community concerned and did not even call them to an interview, the “ideological” objectors were often required to answer questions about sensitive per sonal information.

The applicant could thus legitimately have feared that, not being a member of a religious community, he would not succeed in conveying his ideological beliefs to career officers with senior positions in the military hierarchy.

In view o f the fact that army headquarters would then send the file to the Minister of Defence, appending thereto a draft ministerial decision in accordance with the Board’s proposal, the Minister did not afford any greater safeguards of impartiality and independen ce, even though such safeguards were necessary to reassure a conscientious objector who had appeared, as in the present case, before a board that was made up of a majority of high-ranking army officers. As to the scrutiny of the Supreme Administrative Cour t in the event of an appeal against the Minister’s decision, it concerned only the “lawfulness” of the decision and did not extend to the merits of the assessments by the members of the Special Board.

The Court thus took the view that, to comply with the l etter and spirit of the law, if members of the Board were unable to sit on the day when a conscientious objector was to be interviewed, arrangements had to be made so that it would meet in the conditions of equal representation laid down by domestic law.

C onsequently, the competent authorities had not fulfilled their positive obligation to ensure that the interviewing of conscientious objectors by the Board took place in conditions that guaranteed procedural efficiency and the equal representation required by domestic law.

Conclusion : violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed, the fine not yet being final.

* See in particular Savda v. Turkey , 42730/05, 12 June 2012, Information Note 153 ; on the principle and conditions of the application of Article 9 to cases of conscientious objectors to military service, see Bayatyan v. Armenia [GC], 23459/03, 7 July 2011, Information Note 143 .

** Feti DemirtaÅŸ v. Turkey , 5260/07, 17 January 2012, Information Note 148 .

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

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