PARTIALLY DISSENTING OPINION OF Mr C.L. ROZAKIS, Mrs J. LIDDY

and MM B. MARXER, M.A. NOWICKI, B. CONFORTI and N. BRATZA

1. While we agree that there has been a violation in this case, in our view the matter falls to be examined primarily under Article 9 taken by itself.

2. We note that the applicant refused to serve in the armed forces because of his religious beliefs.  The Commission has in the past held that in the case of persons who refuse to perform military service on religious grounds, Article 9 must be read in conjunction with Article 4 para. 3 (b) of the Convention which refers to alternative service for conscientious objectors “in countries where they are recognised” (Grandrath v. Germany, Comm. Report 12.12.66, Yearbook 10, p. 630; No. 10640/83, Dec. 9.5.84, D.R. 38, p. 219).  This was considered to show that the Convention does not give conscientious objectors the right to exemption from military service, but leaves each Contracting State to decide whether or not to grant such a right.  As a result, a sentence passed for refusal to perform military service was not considered to constitute in itself a breach of Article 9 of the Convention.

3. The jurisprudence of the Convention has, however, evolved in the interim to such an extent as to cast doubt on this reasoning.  Thus, the Court has held that the protection afforded by Article 9 in the shape of freedom of thought, conscience and religion is also one of the purposes of freedom of association guaranteed by Article 11, such that it struck at the very substance of the latter Article to exert serious compulsion to join an association contrary to an individual’s convictions (Eur. Court HR, Young, James and Webster v. United Kingdom judgment of 13 August 1981, Series A no. 44, pp. 22 and 23, paras. 55 and 57).  In the Karlheinz-Schmidt v. Germany case (Eur. Court HR, judgment of 18 July 1994, Series A no. 291-B) neither the Commission nor the Court adopted the view that the saver in Article 4 para. 3 (b) had the effect of rendering another guarantee inapplicable.  The Court found a violation of Article 4 para. 3 (d) in conjunction with Article 14 - which makes specific reference to discrimination on the grounds of religion as well as of, inter alia, sex - where a financial burden ensuing from provision for compulsory service in the fire-brigade involved a difference of treatment on the ground of sex.  The Commission, for its part, did not consider that Article 4 para. 3 (b) prevented it from finding a violation of Article 14 in conjunction with Article 1 of Protocol 1.  Most recently, in the Tsirlis and Kouloumpas case (Eur. Court HR, judgment of 29 May 1997, Reports 1997-III, p. 909) both the Commission and the Court found it unnecessary to examine the Government’s argument that Article 9 does not require States to exempt religious ministers from military service under Article 9 taken alone, having already found, respectively, a violation of Article 14 in conjunction with Article 9 and a violation of Article 5 para. 1.

4. In these circumstances, we consider that the freedom to “manifest ... in observance” the well-known religious conviction of Jehovah’s Witnesses by refraining from personal military service is a freedom which attracts the guarantees of Article 9 para. 1, subject to the provisions of Article 9 para. 2.  The situation can be distinguished from one in which the actions of individuals do not actually express the belief concerned (Arrowsmith v. United Kingdom, Comm. Report 12.10.1978, D.R. 19, p. 5) and from a situation concerning an obligation which has no specific conscientious implications in itself, such as a general tax obligation (No. 10358/83, Dec. 15.12.83, D.R. 37, p. 142).  We note, moreover, that in 1997 Greek law changed to give conscientious objectors the right to perform civilian, instead of military service, which is indicative of a recognition that freedom of conscience may be manifested by opposition to service (even unarmed) within a military as distinct from civilian context (para. 30).

5. It follows that the refusal to appoint the applicant as a Chartered Accountant on the sole ground of his having been convicted for refusing to enlist in the army constituted an interference with his freedom to manifest his religion.

6. An interference with the exercise of an Article 9 right will not be compatible with paragraph 2 unless it was “prescribed by law”, had an aim or aims that is or are legitimate under that paragraph and was “necessary in a democratic society” for the aforesaid aims.

7. It is in dispute between the parties as to whether the applicant’s conviction was for a felony - such that the law precluded his appointment as a Chartered Accountant - or for a misdemeanour.  We see no reason to question the finding of the Third Chamber of the Council of State on 28 June 1996 that the applicant’s conviction was of a felony.  We note moreover that the law was changed in 1995 to specify that insubordination not committed in time of war or in front of the enemy is considered a misdemeanour (para. 29).  Accordingly, the interference was prescribed by law.  We also accept that the law barring felons generally from appointment as Chartered Accountants had the aims of protecting public order or protecting the rights and freedoms of others.

8. As to the “necessity” for the interference within a democratic society, we recall that pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” (Eur. Court HR, Handyside judgment of 7 December 1976, Series A no. 24).  The Commission has not been informed of any special reason justifying the exclusion of Jehovah’s Witnesses who have refused to perform military service from practice as Chartered Accountants.  It is true that it is often in the public interest to exclude from certain professions persons who have been convicted in the past of certain criminal offences.  However, we consider that a conviction for refusing on religious or philosophical grounds to serve in the armed forces cannot imply any dishonesty or moral turpitude.  The applicant’s exclusion from the profession of Chartered Accountants did not, therefore, serve any legitimate public interest.  Nevertheless, it must have had very serious consequences for the applicant’s life.

9. In these circumstances, we consider that the applicant’s exclusion from the profession of Chartered Accountant by reason of his conviction in 1983 went further than was required to achieve a proper balance between the interests involved and cannot be regarded as proportionate to the aims being pursued.  Even making due allowances for a State’s “margin of appreciation” (see, inter alia, Eur. Court HR, Wingrove v. United Kingdom judgment of 25 November 1996, Reports 1996-V, p. 1937) the sanction complained of was not “necessary in a democratic society” as required by paragraph 2 of Article 9.

10. Accordingly, we prefer to find a violation of Article 9 taken by itself.  In our view it is appropriate first to examine the matter under Article 9 and only then under Article 14.  In this respect we do not agree with the approach taken in the Report or the reasoning leading to a violation of Article 14 in conjunction with Article 9. Our conclusion of a violation of Article 9 renders it unnecessary to examine whether there has also been a violation of Article 14.

(Or. English)

The reason for this separate opinion is that the approach adopted in the present Report finding a violation of Article 9 in conjunction with Article 14 of the Convention and the approach in the other separate opinion finding a violation solely of Article 9 are – it is submitted here – not mutually exclusive but, on the contrary, can reinforce each other. The Report’s approach is attractive for it calls for a double test of proportionality under both Article 9 and Article 14 and thus for heightened scrutiny. The other opinion’s reasoning is attractive for its cogent plea to derive a right to invoke conscientious objections against military service from Article 9 of the Convention. The present opinion will also discuss briefly freedom of profession which, according to paragraph 42 of this Report, is not guaranteed by the Convention.

In support of the other separate opinion it can be observed that other international bodies have strongly recommended the recognition of the right to conscientious objection against military service, sometimes considering it as inherent in freedom of religion. Reference can be made to Resolution R (87) 8 of the Committee of Ministers of the Council of Europe and to Resolution 1989/59 of the Commission on Human Rights of the United Nations. Apparently a similar idea has in the meantime led to the adoption by the Greek Parliament of law 2510/1997.

Especially relevant is also the General Comment of the Committee of the Covenant on Civil and Political Rights on Article 18 para. 11 of this instrument. The Committee expressed the belief that a right to conscientious objection can be derived from Article 18 of the Covenant. It added that when this right has been recognised “there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs.” In connection with the other separate opinion it is worth noting what the Court found in para. 47 of its Manoussakis v. Greece judgment of 26 September 1996, Reports 1996-IV, p. 1365: “The right to freedom of religion guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate”. This clearly implies that the authorities ought to be cautious in determining the legitimacy of, and even more so in penalising, any practice and observance based on religious or philosophical convictions. In this context it is to be noted that the refusal of Jehovah’s witnesses to exercise military service is a well-known and generally recognised element of their religious practice.

I share the other opinion’s conclusion in paragraph 8 that the applicant’s exclusion from the profession of chartered accountants did not serve any legitimate interest. It seems, nevertheless, useful also to investigate whether, in the alternative, this exclusion could be considered as proportionate. This seems highly doubtful in view of the fact that this sanction was imposed for lifetime.  In this respect the case resembles the famous case of De Becker v. Belgium (Application No. 214/56), where the Commission found a lifelong deprivation of the freedom of expression ‘not fully justified’ and not ‘necessary in a democratic society’ (Comm. Report 8.1.60, para. 263, Series B 1962, p. 128). In comparing that case with the present one it is to be observed that the applicant’s opposition to military service was considered by the courts at the material time as a felony, whereas it has since been re-qualified in Greek law as only a misdemeanour. De Becker’s conviction of collaboration with the German authorities was far more serious attracting in the first instance the death penalty but commuted on appeal into life imprisonment and forfeiture of certain civil and fundamental rights.

The present case seemingly does not concern the forfeiture of a Convention right. It did, however, concern a ‘civil right’ in the sense of Article 6 para. 1 of the Convention, a point that was not disputed by the parties and that was accepted unanimously by the Commission. The distance between such a conclusion and the right to property under Article 1 of Protocol No. 1 is often small (see, e.g., Eur. Court HR, Tre Traktörer v. Sweden judgment of 7 July 1989, Series A no. 159). Indeed this right was also at stake in the present case. Only that that the relevant complaint was rejected at the admissibility stage for non-compliance with the six-month rule in former Article 26 of the Convention. If it had been raised in time, the conclusion would have been the same as in the De Becker case.

Generally, it could be forcefully argued that freedom of expression is implied in Article 1 of Protocol No. 1. Moreover, if one were to apply vis-à-vis Article 1 of Protocol No. 1 the imaginative interpretation adopted by the Court in its Young, James and Webster v. the United Kingdom  judgment of 13 August 1981 (Series A no. 44, pp. 22-24, paras. 55-57) vis-à-vis the ‘negative’ prohibition of compulsory labour in Article 4 of the Convention, Article 1 of Protocol No. 1 could be also expanded so as to include a positive obligation to respect freedom of profession (cf. Rule 71.6 of the European Prison Rules in Rec. No. R (87) 3 adopted by the Committee of Ministers on 12 February 1987). Anyhow, freedom of profession has been widely recognised in both national constitutions and international human rights instruments (see, e.g., Article 23 of the Universal Declaration, Article 6 para. 1 of the International Convenant on Economic, Social and Cultural Rights, and Part I no. 1 and Article 1 para. 2 of the European Social Charter) as a fundamental or human right in its own merit. Seen in this perspective, the inflicted penalty should and could have been also balanced against the infringement of a fundamental right other than freedom of religion. In the circumstances of the case, no justification for the infringement of such a right would have been found either.

[1]   The term « former » refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.