CASE OF PAPAVASILAKIS v. GREECE

FIRST SECTION

CASE OF PAPAVASILAKIS v. GREECE

(Application no. 66899/14)

JUDGMENT

(Extracts)

STRASBOURG

15 September 2016

FINAL

15/09/2016

This judgment has become final under Article 44 § 2 of the Convention final but it may be subject to editorial revision.

In the case of Papavasilakis v. Greece,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mirjana Lazarova Trajkovska, President,
Ledi Bianku,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Robert Spano,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 23 August 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 66899/14) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Leonidas Papavasilakis (“the applicant”), on 4 October 2014.

2. The applicant was represented by Mr T. Sigalas, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s Delegates, Ms E. Tsaousi, Senior Adviser, State Legal Council, and Ms A. Dimitrakopoulou, Adviser, State Legal Council.

3. The applicant alleged a violation of Article 9 of the Convention.

4. On 2 September 2015 the Government were given notice of the application.

5. The organisation Alliance Defending Freedom (ADF) International, dedicated to protecting fundamental freedoms including the right to life, marriage, the family and freedom of religion, was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1988 and lives in Ikaria.

7. On 30 July 2007 the applicant, wishing to pursue a course of higher education, applied for and was granted permission to defer his enlistment for military service. On 24 September 2012 he interrupted the deferral. As a result, he was required to report to the recruitment centre on 23 January 2013.

8. On 22 January 2013 he applied for leave to perform alternative service on the grounds that he was a conscientious objector.

9. On 27 May 2013 he appeared before the armed forces’ special committee (established by section 62 of Law no. 3421/2005) to explain the nature of his conscientious objection. He stated that his objection was based on moral values stemming from the religious education he had received from his mother, a Jehovah’s Witness, and on his own approach to life, involving the rejection of anything linked to war, violence or destruction in all its forms. The following is an extract from his interview:

“Question: Tell us about your beliefs.

Answer: I grew up in a home where we were respectful of God. My mother is a Jehovah’s Witness. My father is an atheist. I believe that since God does not allow me to perform armed service in this world, I would be insulting him if I were to do so.

Question: So you are citing religious reasons to justify your refusal to perform armed service.

Answer: In substance, yes, but as I have not yet been baptised, I cannot provide you with a certificate from the Church of the Jehovah’s Witnesses. That is why I am also relying on moral grounds.

Question: Why have you not yet been baptised?

Answer: I still have some way to go. My behaviour is not yet completely suitable. I have decided to get baptised, but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail.

Question: How have you come to the conclusion that God has nothing to do with war?

Answer: I have not drawn that conclusion, but if I do enlist and serve worldly power, I will find myself on the wrong side when God decides to take action.

Question: Do you think it is feasible to eradicate violence from this world?

Answer: It is hard to eradicate violence and armies by good will alone.

Question: Have you ever witnessed a violent incident, and if so, how did you react?

Answer: Yes, I was assaulted. I tried to keep my response to a minimum by immobilising the attacker.

Question: By reacting in that way, were you not using violence?

Answer: No, it was self-defence, and I do not think that self-defence involves the use of pure violence.

Question: So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary?

Answer: Yes, I acknowledge lawful authority. The law of mankind exists until the divine law arrives. I believe that people should submit to lawful authority. But there is a difference between submitting to it and becoming part of it.

Question: Are you a member of a non-violent organisation?

Answer: No; for me, religious reasons take priority over reasons linked to morals ...”

10. Only three of the five members of the special committee were present when it interviewed the applicant, namely two officers of the armed forces and an adviser of the State Legal Council. The other two members – two university professors specialising in psychology, philosophy or social sciences – were unable to attend and were not replaced.

11. On 27 May 2013 the special committee decided unanimously to propose that the applicant’s application be rejected. It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated. Firstly, he was not a member of the Jehovah’s Witnesses community, and secondly, he had not shown that he had taken part in non-violent movements; on the contrary, he had stated that self-defence was not a form of violence and that people should submit to lawful authority.

12. On 30 July 2013 the Minister of National Defence rejected the application on the grounds proposed by the special committee.

13. On 5 September 2013 the applicant applied to the Supreme Administrative Court for judicial review of the decision by the Minister of National Defence.

14. Firstly, he challenged the composition of the special committee that had adjudicated on his case, and complained in particular that the two university professors had been absent on that occasion. He submitted that as a result of their absence and the failure to replace them, the very nature of the committee had been distorted, since the military officers had formed a majority among the three members present. In the applicant’s view, the officers were inherently ill-disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them.

15. Secondly, the applicant argued that the Minister’s decision had not contained sufficient reasons, seeing that (a) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion; and (b) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti-authority or to publicise their views, whereas the law did not lay down any such conditions.

16. Thirdly, the applicant complained of an infringement of his right to conscientious objection, arguing that the mere assertion of that right, coupled with his behaviour in practice (not possessing a firearms licence or having any convictions for offences involving violence), was sufficient to justify his application for exemption from armed service.

17. In judgment no. 1289/2014 of 7 April 2014 the Supreme Administrative Court dismissed the applicant’s application.

18. In response to his first argument, it noted that the members of the committee sat on an equal basis and that the absence of two of the members therefore had no effect on the quorum and did not distort the nature of the committee.

19. With regard to his second argument, the Supreme Administrative Court explained that, after examining whether the applicant was a follower of a religion that prohibited the use of force, whether he had taken part in non-violent movements and whether his philosophy of life prevented him from handling weapons, the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour. It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination, holding that the law required clear proof of their beliefs and that, moreover, the fact of not falling within the exceptions provided for by law was insufficient.

20. As to the third argument, the Supreme Administrative Court held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection. Such an exemption had to be subject to the conditions laid down by law, including the submission of sound and convincing reasons to justify it. It added that conscientious objection could not be established on the basis of a simple declaration, and nor could it be inferred from negative facts, such as not having any convictions for assault and not possessing weapons. On the contrary, it was necessary to provide evidence of active behaviour over a certain period, but the applicant had failed to do so.

21. On 19 May 2014 the applicant was ordered to pay a fine of 6,000 euros (EUR) for insubordination; with interest for late payment, the amount was increased to EUR 7,940.85. On 11 July 2014 the applicant applied to the Mytilene Administrative Court to have the fine set aside. The case is still pending, but the authorities have seized a sum from his bank account.

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THE LAW

I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

34. Relying on Article 6 of the Convention, the applicant complained that the Supreme Administrative Court had failed to examine his complaint that there had been a violation of Article 9 of the Convention in that the special committee considering his case had been composed of a majority of military officers, who, in the applicant’s submission, were inherently ill-disposed towards conscientious objectors. Relying on Article 9 of the Convention, he complained that his application had not been examined in proper or impartial conditions, as the absence of two of the members of the committee had, in his view, resulted in an erroneous interpretation of his beliefs and the rejection of his application. Lastly, relying on Article 9 taken together with Article 11 of the Convention, he alleged that the rejection of his application for conscientious objector status constituted a breach of his negative freedom not to be a follower of a particular religion or a member of an anti-militarist organisation.

35. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see, for example, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012). In the present case, it considers that the procedure followed by the armed forces’ special committee and the reasoning adopted by the Supreme Administrative Court on this matter might raise an issue under Article 9 of the Convention. Accordingly, it considers that the applicant’s complaints should be examined under Article 9 alone, which provides:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

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B. Merits

1. The parties’ submissions

(a)  The applicant

39. The applicant stated that unlike the applicant in Kosteski v. the former Yugoslav Republic of Macedonia (no. 55170/00, 13 April 2006), who had had to prove a fact, he himself had had to demonstrate a belief by means of a procedure established by the State. He submitted that conscientious objectors were not only militants, people who publicly promoted their ideas or members of religious organisations, and that everyone was free to choose not to make their beliefs public and not to belong to organisations. Moreover, people adhering to the same fundamental principles might have deeply and sincerely held beliefs that were completely different.

40. The applicant further submitted that the State should apply a presumption of sincerity to a declaration of conscientious objection, as would be the case for the presumption of innocence or a tax declaration. In Greece, the authorities had adopted objective and easily applicable criteria for testing the sincerity of stated beliefs, namely increasing the duration of alternative service and requiring it to be carried out away from the place of residence. The authorities also had to take into account the way in which the individual concerned had acquired and developed such beliefs, and the consistency in the individual’s attitude between the acquisition of the beliefs and the final decision by the appropriate authority. The applicant maintained that he had satisfied all the conditions for being granted conscientious objector status, but that the special committee’s assessment of some of his statements had been incorrect.

41. The applicant also contended that the mechanism established by section 62 of Law no. 3421/2005 was not compatible with Recommendation no. R(87)8 of the Committee of Ministers of the Council of Europe. In that connection he criticised the close relationship between the special committee and the military command and asserted that the decisive final step in the procedure was ultimately the responsibility of the military authorities. Relying on the Court’s case-law concerning the impartiality of Turkish military courts, and also on the comments of the Greek National Commission for Human Rights on the draft legislation concerning conscientious objectors ..., he submitted that the special committee’s lack of impartiality and independence was blatant in his case.

42. Lastly, the applicant asserted that all, or the vast majority, of the 158 applications accepted by the special committee in 2013 had been submitted by Jehovah’s Witnesses playing an active role within their community. The fourteen applications that had been rejected had been submitted by conscientious objectors who, like him, were motivated by ideological reasons, and their rejection was unsurprising given the committee’s consistent practice, which had been heavily criticised by Amnesty International and other human rights organisations.

(b)  The Government

43. The Government stated at the outset that the applicant’s particular case differed from the situation in Bayatyan [v. Armenia [GC], no. 23459/03, ECHR 2011], which he had relied on in his application to the Court. They were unable to accept the applicant’s argument that the special committee established by section 62 of Law no. 3421/2005 lacked impartiality. The members of the committee enjoyed equal status and the absence of two of them during the examination of the applicant’s application could not have had affected the quorum or distorted the nature of the committee. Even assuming that the two members in question had been present and had voted in his favour, there was nothing to support the conclusion that the committee’s decision would have been different.

44. The Government further contended that it was arbitrary for the applicant to maintain that it was predictable that the two officers would reject his application on the grounds that they were inherently prejudiced against conscientious objectors. Referring to a document produced by the Ministry of National Defence, the Government stated that in 2013 the special committee had examined 172 similar applications to the one submitted by the applicant and had accepted 158 of them. In 97 of the 158 cases, there had been a majority of military members sitting on the committee (two officers and the adviser of the State Legal Council), and in 61 cases the composition had been balanced (two officers, one university professor and the adviser of the State Legal Council). With that in mind, the applicant could have asked for his application to be reconsidered by the committee with all its members sitting.

45. In addition, the Government submitted that the record of the applicant’s interview (see paragraph 9 above) showed that the members of the committee had set out to assess the sincerity and seriousness of his beliefs, and that to that end they had asked him a series of fundamental questions to which he had not given clear and convincing answers. The applicant’s argument that the special committee should have reached a different conclusion on the grounds that he had been raised by a Jehovah’s Witness mother and an atheist father was unconvincing, and he had failed to prove that he had stable and sincere beliefs preventing him from performing armed service.

46. The Government also contended that the applicant was unfounded in arguing that the proof of a conscientious objector’s beliefs was established by his leading a peaceful and law-abiding life. Allowing such an approach would produce an absurd result, namely that the vast majority of men who did not possess weapons and had never been involved in acts of violence would be exempted from their military obligations.

47. Lastly, the Government objected to the applicant’s argument that the procedure established by section 62 of Law no. 3421/2005 was incompatible with the requirements of the Convention. In their submission, a general complaint about the practical implementation of that procedure was not sufficient to establish that it was defective or that there had been any specific lack of impartiality in the applicant’s case.

(c) Alliance Defending Freedom International, third-party intervener

48. ADF International highlighted the pre-eminence of freedom of conscience, which was recognised not only in the major human rights treaties and the corresponding case-law but also in national legislation and judicial practice and in various international instruments adopted by the Council of Europe, the European Union and the United Nations.

49. ADF International acknowledged that it was difficult in practice for the domestic courts to assess whether a claim relating to a belief was genuine. However, it stated that the Court had already set up a framework for evaluating such claims and noted that the question was whether an individual opposed to the obligation to perform military service was placed in a serious conflict between that obligation and his or her genuinely and deeply held religious or other convictions and was thus forced to act against the dictates of his or her conscience. ADF International submitted that the first prong of the test to be carried out to that end served as an initial threshold: the conflict arising had to reach a certain level of seriousness. The second prong of the test consisted in examining whether the belief was genuinely and deeply held: the convictions asserted by the individual had to be based on a set of identifiable and sincerely expressed values. The third prong involved an assessment of the nature of the conflict, and in particular, whether it had a moral dimension. Such an assessment was in the nature of things subjective and amounted to determining what was required of the individual seeking conscientious objector status.

2. The Court’s assessment

50. The Court observes that the rejection of the applicant’s application for conscientious objector status may be regarded as interference with his right to freedom of thought and conscience as safeguarded by Article 9 of the Convention.

51. The Court further notes that it has frequently held that under Article 8 of the Convention, the State’s positive obligation inherent in effective respect for private life may involve the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998-III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005-X), and in particular the introduction of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where relevant, of appropriate special measures. While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar (see Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts)).

52. In Savda v. Turkey (cited above, § 98) the Court held that these principles could be applied mutatis mutandis to the right to conscientious objection to compulsory military service, given that in the absence of a procedure for examining claims for conscientious objector status, such service was likely to entail a serious and insurmountable conflict between the obligation to perform it and an individual’s conscience or genuinely and deeply held beliefs. The Court concluded that there had been a positive obligation on the authorities to provide the applicant with an effective and accessible procedure for establishing whether he was entitled to conscientious objector status, with a view to preserving his interests as protected by Article 9 (ibid., § 99).

53. The Court notes at the outset that, contrary to the situation in Turkey that gave rise to its Savda judgment (cited above) and the other judgments mentioned above (see paragraph 36), there was a legal framework in Greece at the material time governing conscientious objector status and an alternative to armed service. Although the Constitution does not enshrine a general right to exemption from military service, the interpretative declaration concerning Article 4 § 6 of the Constitution states that the paragraph in question does not exclude the possibility of a law providing for the compulsory performance of other types of service, whether within or outside the armed forces (alternative service), by anyone with a justified conscientious objection to performing armed or general military service. To that end, Law no. 3421/2005 was enacted, placing conscientious objectors at the disposal of various public services further to a decision taken by the Minister of National Defence after obtaining the opinion of a special committee responsible for examining, either on the basis of documentary evidence or after interviewing the individual concerned, whether the requirements for granting conscientious objector status are satisfied.

54. It is not disputed that the purpose of the procedure before the special committee under section 62 of Law no. 3421/2005 is to assess the seriousness of the individual’s beliefs and to thwart any attempt to abuse the possibility of an exemption on the part of individuals who are in a position to perform their military service. The Court acknowledges the value of an interview of this kind, seeing that the risk that certain conscripts might pretend to be conscientious objectors cannot be entirely ruled out.

55. In some of the Turkish cases cited above, the Court held that the applicants’ doubts about the independence and impartiality of the Turkish military courts that had tried them were objectively justified. It found that it was understandable that a conscientious objector standing trial for strictly military offences before an exclusively military court should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings, and that the individual concerned could legitimately have feared that the court might allow itself to be unduly influenced by partial considerations (see, for example, Feti Demirtaş, cited above).

56. In the present case, the situation was different. It involved appearing before a committee that was not called upon to impose a penalty for a breach of military discipline, as in the case of the Turkish courts, but to determine, prior to an individual’s enlistment, whether or not he should be granted conscientious objector status.

57. The Court notes that in his answers to the committee, the applicant attempted to substantiate his beliefs and declared himself willing to perform alternative service for fifteen months instead of nine months, the normal duration of armed service. After the failure of his attempt to convince the committee, he again asserted his conscientious objection by appealing to the Supreme Administrative Court against the decision by the Minister of National Defence to refuse his application, by paying the fine of 6,000 euros after that court found against him and by accepting the risk of a prison sentence for insubordination.

58. The Court observes that the applicant’s main complaint is that some of the statements which he made to the committee – in particular, those to the effect that submitting to authority was an obligation and that self-defence was not a form of violence – were misinterpreted by the members present, who were senior officers. It reiterates that it is not its task to evaluate the meaning of the applicant’s statements and the way in which the members of the committee interpreted them, this being first and foremost the role of the national authorities (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, ECHR 2011).

59. Section 62 of Law no. 3421/2005 provides that when the special committee examines applications for exemption from armed military service for conscientious objectors, it should be composed of two university professors specialising in philosophy, social and political sciences or psychology, a senior or other adviser of the State Legal Council, and two senior officers of the armed forces, one from the recruitment corps and one from the medical corps. It is clear that special precautions have been taken to ensure that the committee includes an equal number of military officers and civil-society representatives with specialist knowledge in the field, and is chaired by a legal expert. A number of substitutes equal to the number of full members are also appointed for the same duration.

60. In this connection, the Court reiterates that the positive obligation on States in accordance with its judgments in Bayatyan and Savda (both cited above) is not confined to ensuring that their domestic legal system includes a procedure for examining applications for conscientious objector status. It also encompasses the obligation to provide for an effective and accessible investigation into such matters (see Savda, cited above, § 99). One of the fundamental conditions for an investigation to be considered effective is the independence of the individuals conducting it.

61. The Court notes in the present case that if all the members of the special committee had been present at the time when it interviewed the applicant, the majority would have been civilians: two university professors specialising in social sciences and the adviser of the State Legal Council (acting as chairman), as against two high-ranking army officers. However, only the chairman and the two officers were present on that date. In the Court’s view, the applicant could legitimately have feared that, since he was not a member of a religious community, he would not succeed in conveying his ideological convictions to career officers with senior positions in the military hierarchy.

62. In this connection, the Court observes that in his recommendation of 2013 the Greek Ombudsman pointed out that, while for conscientious objectors classified as “religious”, the special committee required no more than a certificate from the religious community concerned and did not even call them to an interview, “ideological” objectors were often required to answer questions concerning sensitive personal information ...

63. For the letter and the spirit of section 62 of Law no. 3421/2005 to be observed, the Court considers that if certain members of the committee are unable to attend when it is due to interview a conscientious objector, arrangements should be made so that it can meet in the conditions of equal representation laid down in the provision in question.

64. Admittedly, the committee’s decision is merely an opinion which is transmitted to the Minister of National Defence, who takes the final decision on the request by the objector to perform alternative service. Article 3 of the Minister of National Defence’s implementing decision, entitled “Alternative service for conscientious objectors”, provides that, following the deliberations and the drafting of the record, the committee’s rapporteur sends the file to the recruitment corps at the armed forces headquarters, after which it is transmitted to the Minister of National Defence, with a draft ministerial decision appended in accordance with the committee’s proposal. ... That being so, the Minister likewise does not afford the requisite guarantees of impartiality and independence to reassure a conscientious objector who has been interviewed, as in the present case, by a committee made up of a majority of high-ranking army officers.

65. As to the scrutiny performed by the Supreme Administrative Court in the event of an appeal against the Minister of National Defence’s decision, it extends only to the lawfulness of the decision and not to the merits of the case, and is based on the assessments made by the members of the special committee.

66. Having regard to the foregoing, the Court considers that the competent authorities failed, in the circumstances of the case, to comply with their positive obligation under Article 9 of the Convention to ensure that interviews of conscientious objectors by the special committee are conducted in conditions guaranteeing procedural efficiency and the equal representation required by section 62 of Law no. 3421/2005. There has therefore been a violation of that Article.

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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2. Holds that there has been a violation of Article 9 of the Convention;

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Done in French, and notified in writing on 15 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposMirjana Lazarova Trajkovska
RegistrarPresident

 

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