Application No. 24120/94 Application No. 25506/94
by Georgios PETROU by Omiros KONSTANTINOU
against Cyprus against Cyprus
The European Commission of Human Rights sitting in private on
27 november 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 5 April 1994 and
10 October 1994 by Georgiou PETROU and Omiros KONSTANTINOU against
Cyprus and registered on 11 May 1994 and 27 October 1994 under file
No. 24120/94 and No. 25506/94 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 19 and
27 April and 9 August 1995 and the observations in reply
submitted by the applicants on 13 and 22 June 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Cypriot citizen, born in 1966 and
resident in Nicosia. The second applicant is a Cypriot citizen, born
in 1955 and resident in Limassol. Before the Commission the applicants
are represented by Mr. Panayotis Bitsaxis, an attorney-at-law
practising in Athens.
The facts of the case, as submitted by the parties, may be
summarised as follows.
1. The particular circumstances of the case
Application No. 24120/94
The applicant is a Jehovah's Witness.
On 24 November 1983 the applicant received a draft order for
military service with which he did not comply.
On 21 May 1984 the applicant was convicted of insubordination
(anipotaxia) and sentenced to 15 months' imprisonment by the Nicosia
Military Court. The applicant served his prison sentence between
21 May 1984 and 20 May 1985.
On 2 December 1985 the applicant received another draft order for
military service. The applicant performed his military service between
8 January 1986 and 18 February 1987.
On 10 December 1987 the applicant received a draft order for an
armed military drill with which he did not comply.
On 21 April 1988 the applicant was convicted of insubordination
and sentenced to a fine of 30 Cypriot pounds by the Nicosia Military
Court.
On 17 March 1989 the applicant received a draft order for another
armed military drill with which he did not comply.
On 17 January 1990 the applicant was convicted of insubordination
and sentenced to 2 months' imprisonment by the Nicosia Military Court.
The applicant served his prison sentence between 17 January 1990 and
3 March 1990.
Between May 1989 and August 1990 the applicant received four
draft orders for armed military drills with which he did not comply.
On 13 September 1990 the applicant was convicted of
insubordination and sentenced to 3 months' imprisonment by the Nicosia
Military Court. The applicant served his prison sentence between
13 September 1990 and 24 November 1990.
Between 25 July 1990 and 11 November 1991 the applicant received
four draft orders for armed military drills with which he did not
comply.
On 17 January 1992 Law No. 2/1992 recognised conscientious
objection to the performance of military service, providing that
conscripts who wish to be recognised as conscientious objectors must
file an application to the competent Minister at least 30 days before
the date of their enlistment.
Between 13 March 1992 and 29 April 1993 the applicant received
four draft orders for armed military drills with which he did not
comply. The applicant alleges that he had always received the draft
orders too late, namely less than 30 days before his enlistment, and
that, therefore, he did not have the opportunity of being recognised
as a conscientious objector.
On 25 May 1993 the Department of Welfare of the Republic of
Cyprus (Tmima Evimerias tis Kipriakis Dimokratias) prepared a "social
report" (kinoniki ekthesi) concerning the personality of the applicant,
his private and family life. The applicant refused to co-operate in the
preparation of that report.
On 1 July 1993 the applicant was convicted of insubordination to
the eight draft orders he had received between 25 July 1990 and
29 April 1993, and sentenced to 6 months' imprisonment by the Nicosia
Military Court.
On 9 July 1993 the applicant lodged an appeal against the said
sentence before the Supreme Court (Anotato Dikastirio) of Cyprus. He
pleaded guilty of the offence of insubordination with which he had been
charged but stressed that he is a conscientious objector and argued on
the provisions and meaning of Article 10 of the Cypriot Constitution
which is similar to Article 4 of the Convention.
On 16 November 1993 the Supreme Court of Cyprus ordered the
applicant's release from prison on the ground that the sentence imposed
was "excessive". It also found that the applicant had refused to comply
with Law No. 2/1992.
Between 2 November 1993 and 25 February 1995 the applicant
received three draft orders for armed military drills with which he did
not comply.
Application No. 25506/94
The applicant served his military service between 1973 and 1976.
Since 1982 the applicant is a Jehovah's Witness.
In 1983 the applicant received a draft order for an armed
military drill with which he did not comply.
On 15 November 1983 the applicant was convicted of
insubordination (anipotaxia) and sentenced to 3 months' imprisonment
by the Nicosia Military Court. The applicant served his prison sentence
between 15 November 1983 and 31 December 1983.
Between January and March 1984 the applicant received four draft
orders for armed military drills with which he did not comply.
On 8 March 1984 the applicant was convicted of insubordination
and sentenced to 8 months' imprisonment by the Nicosia Military Court.
The applicant served his prison sentence between 8 March 1984 and
20 September 1984.
Between September 1984 and June 1991 the applicant received three
draft orders for armed military drills with which he did not comply.
On 2 July 1991 the applicant was convicted of insubordination and
sentenced to 2 months' imprisonment by the Nicosia Military Court. The
applicant served his prison sentence between 2 July 1991 and
20 August 1991.
Between January 1992 and April 1994 the applicant received eight
draft orders for armed military drills with which he did not comply.
The applicant alleges that he has always received the draft orders too
late, namely less than 30 days before his enlistment, and that,
therefore, he did not have the opportunity of being recognised as a
conscientious objector (see below in "Relevant domestic law").
On 13 April 1994 the applicant was convicted of insubordination
and sentenced to 6 months' imprisonment by the Nicosia Military Court.
On 19 April 1994 the applicant lodged an appeal against his
conviction and sentence before the Supreme Court (Anotato Dikastirio)
of Cyprus. He stressed that he is a conscientious objector and argued
on the contents and meaning of Article 10 of the Cypriot Constitution
which is similar to Article 4 of the Convention.
On 29 July 1994 the Supreme Court of Cyprus rejected the
applicant's appeal but ordered his release from prison on the ground
that the inflicted sentence was "excessive". It also found that the
applicant had refused to comply with Law No. 2/1992.
2. Relevant domestic law
A. Article 10 of the Cypriot Constitution reads as follows:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory
labour.
3. For the purpose of this Article the term "forced or
compulsory labour" shall not include:
(...)
(b) any service of a military character or, in case of
conscientious objectors, provided that they have been
recognised by law, service exacted instead of
compulsory military service.
(...)"
B. Article 12 of the Cypriot Constitution reads as follows:
"1. No person shall be held guilty of any offence on account of
any act or omission which did not constitute an offence under the
law at the time when it was committed (...).
2. A person who has been acquitted or convicted of an offence
shall not be tried again for the same offence. No person shall
be punished twice for the same act or omission except where death
ensues from such act or omission.
(...)"
C. Article 18 para. 1 of the Cypriot Constitution reads as follows:
"Every person has the right to freedom of thought, conscience
and religion."
D. According to Article 22 of National Guard Law codified on
15 September 1984 (Article 8 of Law No. 22/1978), "any person who being
liable to do so ... refuses to present himself or does not comply with
any draft order ... is guilty of an offence and liable to an
imprisonment not exceeding two years and/or to a fine not exceeding
£500".
E. On 17 January 1992 Law No. 2/1992 recognised conscientious
objection to the performance of military service, providing that
conscripts who wish to be recognised as conscientious objectors must
file an application to the competent Minister at least 30 days before
the date of their enlistment (Article 2, para. 3).
COMPLAINTS
1. The applicants complain that the last five draft orders the first
applicant received and the last eight draft orders the second applicant
received amounted to compulsory labour in breach of Article 4 of the
Convention. In this respect the applicants submit that they were
compelled to military service in a country where conscientious
objectors are recognised.
2. The applicants complain that they were deprived of their liberty
in breach of Article 5 para. 1 a) of the Convention. In this respect
they submit that they are constantly under threat of punishment and
that they were convicted several times for the same reason in breach
of the principle of "ne bis in idem", guaranteed by Article 4 of
Protocol No. 7.
3. The applicants complain that on 1 July 1993 and 13 April 1994
respectively they were convicted for acts which, given the Law
No. 2/1992, did no longer constitute a criminal offence under Cypriot
law, in breach of Article 7 of the Convention.
4. The first applicant alleges that the preparation of the "social
report" concerning his personality amounts to a violation of his right
to private and family life, in breach of Article 8 of the Convention.
5. The applicants complain that the prosecutions and incarcerations
to which they were subjected aimed at forcing them to alter the
contents of their conscience and religion. They allege that their right
to freedom of religion and conscience guaranteed by Article 9 para. 1
of the Convention has been violated.
The applicants further claim that the military authorities'
insistence on prosecuting them amounts to degrading treatment
prohibited by Article 3 of the Convention.
The applicants also submit that they were prevented from enjoying
their private and family life in breach of Article 8 of the Convention.
The first applicant also submits that he was prevented from finding an
employment in breach of Article 1 of Protocol No. 1.
The applicants finally allege that they have been victims of
discriminatory practice, singling out Jehovah's Witnesses, in breach
of Article 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 24120/94 was introduced on 5 April 1994 and
registered on 11 May 1994. Application No. 25506/94 was introduced on
10 October 1994 and registered on 27 October 1994.
On 20 February 1995 the Commission decided to communicate the
applications to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations on application No. 24120/94
were submitted on 27 April 1995 and those on application No. 25506/94
on 19 April 1995. On 9 August 1995 the Government submitted
supplementary observations on application No. 25506/94. The first
applicant replied on 22 June 1995 and the second applicant replied on
13 June 1995.
By letter dated 16 October 1995 the applicants' lawyer informed
the Secretariat that after various discussions with the Cypriot
authorities the applicants have decided to withdraw their applications.
REASONS FOR THE DECISION
1. Having regard to the similar nature of the issues raised, the
Commission decides to join the present applications under Rule 35 of
its Rules of Procedure.
2. On 16 October 1995 the applicants' lawyer informed the
Secretariat that after various discussions with the Cypriot authorities
the applicants have decided to withdraw their applications.
In these circumstances the Commission finds that the applicants
no longer intend to pursue their applications. It further considers
that respect for Human Rights as defined in the Convention does not
require it to continue the examination of the applications.
It follows that the applications may be struck off the list of
cases pursuant to Article 30 para. 1 (a) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO JOIN APPLICATIONS Nos. 24120/94 and 25506/94;
DECIDES TO STRIKE THE APPLICATIONS OUT OF THE LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy