THLIMMENOS v. GREECE

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 34369/97

Iakovos Thlimmenos

against

Greece

REPORT OF THE COMMISSION

(adopted on 4 December 1998)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1 - 15) ......................................... 1

A.The application

(paras. 2 - 4) ..................................... 1

B.The proceedings

(paras. 5 - 10) .................................... 1

C.The present Report

(paras. 11 - 15) ................................... 2

II.ESTABLISHMENT OF THE FACTS

(paras. 16 - 32) ........................................ 4

A.The particular circumstances of the case

(paras. 16 - 21) ................................... 4

B.Relevant domestic law

(paras. 22 - 32) ................................... 5

III.OPINION OF THE COMMISSION

(paras. 33 - 68) ........................................ 7

A.Complaints declared admissible

(para. 33) ....................................... 7

B.Points at issue

(para. 34) ....................................... 7

C.As regards Article 9 of the Convention taken

in conjunction with Article 14

(paras. 35 - 51) ................................... 7

CONCLUSION

(para. 51) ....................................... 10

D.As regards Article 9 of the Convention

(paras. 52 - 53) .................................. 11

TABLE OF CONTENTS

Page

CONCLUSION

(para. 53) ....................................... 11

E.As regards Article 6 para. 1 of the Convention

(paras. 54-65) ................................... 11

CONCLUSION

(para. 65) ....................................... 12

F.Recapitulation

(paras. 66 - 68) .................................. 12

 PARTIALLY DISSENTING OPINION OF Mr C.L. ROZAKIS,Mrs J. LIDDY and MM B. MARXER, M.A. NOWICKI, B. CONFORTIand N. BRATZA ............................................................................................................... 13

CONCURRING OPINION OF Mr E.A. ALKEMA .................... 16

APPENDIX :DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION ............... 18

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is a Greek citizen, born in 1955 and resident in Messinia. He was represented before the Commission by Mr N. Alivizatos and Mr S. Tsakyrakis, both of them lawyers practising in Athens.

3.The application is directed against Greece. The respondent Government were represented by their Agent, Mr L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr Ph. Georgakopoulos, Member (Nomikos Simvulos) of the Legal Advisory Council of the State, and Mr K. Georgiadis, Legal Assistant (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.

4.The case concerns the refusal of the authorities to appoint the applicant, a Jehovah's Witness, to a post of chartered accountant because of his criminal conviction for refusing to do military service and the length of the proceedings instituted by the applicant before the Council of State to challenge this refusal. The applicant invokes Articles 6 para. 1, 9 and 14 of the Convention.

B.The proceedings

5.The application was introduced on 18 December 1996 and registered on 8 January 1997.

6.On 26 May 1997 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 

7.The Government's observations were submitted on 4 August 1997 after an extension of the time-limit fixed for this purpose. The applicant replied on 20 October 1997.

8.On 12 January 1998 the Commission declared admissible the applicant's complaints concerning his right to freedom of religion, his right not to be subjected to discrimination in this respect and the length of the proceedings before the Council of State. It declared inadmissible the remainder of the application.

9.The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted further observations on 19 February 1998. The applicant did not reply.

10.After declaring the case admissible, the Commission, acting in accordance with former [1]Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

11.The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MMJ.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MrA. ARABADJIEV

12.The text of this Report was adopted on 4 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13.The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14.The Commission's decision on the admissibility of the application is annexed hereto.

15.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

16.On 9 December 1983 the Permanent Martial Court (Diarkes Stratodikio) of Athens, composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to enlist in the army at a time of general mobilisation. However, the martial court considered under Article 70(b) of the Military Criminal Code and under Article 84 para. 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day.

17.In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Chartered Accountants' Body (hereinafter "the Board") refused to appoint him on the ground that he had been convicted of a felony (kakuryima). On 8 May 1989 the applicant appealed to the Council of State (Simvulio Epikratias) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also submitted that he had not been convicted of a felony but of a less serious crime.

18.On 18 April 1991 the Third Chamber of the Council held a hearing. On 25 May 1991 it decided to refer the case to the Plenary because of the important issues it raised. The Chamber's own view was the following. Article 10 of Legislative Decree No. 3329/1955 provided that no person who would not qualify for appointment to the civil service could be appointed a chartered accountant. Moreover, according to Article 22 para. 1 of the Civil Servants Code, no person convicted of a felony can be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 para. 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges, enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 para. 5 of the Constitution. As a result, the applicant's conviction by the Permanent Martial Court of Athens could not be taken into consideration and the decision refusing to appoint the applicant chartered accountant had to be quashed.

19.On 21 January 1994 a hearing was held before the Council of State, sitting in Plenary. On 11 November 1994 the Council of State decided that the Board had complied with the law when, for the purposes of applying Article 22 para. 1 of the Civil Servants Code, it took into consideration the applicant's conviction of a felony by the Permanent Martial Court of Athens. Article 96 para. 5 of the Constitution provided that the military courts would continue functioning as they used to until the enactment of a new law which would change their composition and such a law had not yet been enacted. The Council of State further decided that the case should be referred back to the Third Chamber which would examine its remaining aspects.

20.The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 para. 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Permanent Military Court of Athens, the applicant's appeal had to be allowed. 

21.On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected the applicant's appeal, considering, inter alia, that the Board's failure to appoint the applicant was not related to his religious beliefs but to the fact that he had committed a criminal offence.

B.Relevant domestic law

22. Article 10 of Legislative Decree No. 3329/1955, as amended by Article 5 of Presidential Decree 15/1989, provides that no person who does not qualify for appointment to the civil service may be appointed as a chartered accountant.

23.According to Article 22 para. 1 of the Civil Servants Code, no person convicted of a felony can be appointed to the civil service.

24.Article 70 of the Military Criminal Code in force until 1995 provided as follows:

"A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order is punished

(a) if the act is committed in front of the enemy or armed insurgents, with death

(b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and

(c) in all other circumstances, with imprisonment between six months and two years."

25.By virtue of Presidential Decree 506/1974, at the time of the applicant's arrest Greece was deemed to be in general mobilisation. This decree still remains in force.

26.Article 84 para. 2 (a) of the Criminal Code provides that a lower penalty is imposed on persons who, prior to the crime, had led an honest life.

27.Under Article 2 para. 4 of Law 731/1977, those who refuse to perform unarmed military service on the basis of their religious beliefs are sentenced to imprisonment of a duration equivalent to that of the unarmed service, i.e. less than five years.

28.Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be felonies (kakuryimata). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours (plimmelimata).

29.Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour.

30.Law 2510/1997 gives conscientious objectors the right to perform civilian, instead of military, service.

31.According to Article 87 para. 1 of the Constitution, justice is rendered by courts composed of permanent judges who enjoy personal and functional independence.

32.According to Article 96 para. 5 of the Constitution, the majority of the members of the Permanent Martial Courts are career military judges enjoying the same guarantees of personal and functional independence as civilian judges. It was expressly provided in the Constitution that a law would determine how and as from which time this provision would apply. A law intended to give effect to this provision was enacted for the first time in 1995. Thus, the new Military Code provides that at least three of the five members of the Permanent Martial Courts are career military judges enjoying the same guarantees of personal and functional independence as civilian judges.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

33. The Commission has declared admissible the applicant's complaints concerning

-his right to freedom of religion,

-his right not to be subjected to discrimination in this respect and

-the length of the proceedings before the Council of State.

B.Points at issue

34. Accordingly, the points at issue are

-whether there has been a violation of Article 9 of the Convention, taken on its own and in conjunction with Article 14; and

-whether there has been a violation of Article 6 para. 1 of the Convention.

The Commission notes that the applicant in essence complains that the domestic rules on the appointment of chartered accountants failed to make a distinction between persons who had been convicted of ordinary felonies and persons who had been convicted of refusing to serve in the military forces because of their religious beliefs. The Commission considers that the nature of the complaint is such that it falls to be examined primarily under Article 9 of the Convention taken in conjunction with Article 14.

C.As regards Article 9 of the Convention taken in conjunction with  Article 14

35. Articles 9 and 14 of the Convention provide as follows:

Article 9

"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 in 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."

Article 14

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

36. The applicant argues that the refusal of the authorities to appoint him to a post of chartered accountant because of his criminal conviction for refusing to do military service amounts to a violation of Article 9 of the Convention. He submits in this connection that he refused to serve in the armed forces because he was a Jehovah's Witness. Moreover, he claims that he has not been convicted of a felony but of a misdemeanour. It was Article 2 para. 4 of Law 731/1977 which applied in his case and not Article 70 of the Military Criminal Code. Moreover, the application of Article 22 para. 1 of the Civil Servants Code in his case was entirely disproportionate, since no account was taken of the nature of the post to which he sought appointment, of the nature of the offence, of his motives and of his conduct after his conviction. In these circumstances, the refusal to appoint him to a post of chartered accountant amounted to a second penalty for the same offence. Moreover, the applicant submits that there has been a violation of Article 14 of the Convention taken in conjunction with Article 9 because his conviction for refusing to serve in the armed forces was directly related to his religious beliefs.

37. The Government submit that there has been no interference with the applicant's right to freedom of religion under Article 9 of the  Convention. Article 22 para. 1 of the Greek Civil Servants Code, which precludes the appointment of persons convicted of a felony to the civil service, applies generally and neutrally. It allows no room for a case-by-case evaluation of the nature of the crime and of the motives of the person who was convicted. Moreover, the Convention does not guarantee the right of conscientious objection and, in any event, the applicant's original conviction does not fall within the competence of the Commission.

38. Furthermore, the Government point out that the applicant raised the argument about the nature of the offence for the first time in his observations in reply. He had not raised it in his application form, nor did he raise it before the domestic courts. In any event, Article 2 para. 4 of Law 731/1977 did not create a new offence. As the Council of State itself accepted in its decision of 28 June 1996, the applicant was convicted of a felony under Article 70 of the Military Criminal Code.

39.Finally, the Government submit that there was no violation of Article 14 of the Convention because the reason for the authorities' refusal to appoint the applicant to a charted accountant's post was his criminal conviction and not his religious beliefs.

40. The Commission recalls that, according to its case-law, Article 9 para. 1 of the Convention can be divided in two parts. The first limb of paragraph 1 guarantees a general right to freedom of religion. Under the second limb of paragraph 1, a more specific right to change and manifest one's religion is protected (Darby v. Sweden, Comm. Report 9.5.89, para. 44, Eur. Court HR, Series A no. 187, p. 17). Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition it protects acts which are intimately linked to these attitudes. However, it does not always guarantee the right to behave in the public sphere in a way which is dictated by such beliefs (No. 10358/83, Dec. 15.12.83, D.R. 37, p. 142).

41.The Commission also recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (Eur. Court HR, Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36). For the purposes of Article 14, a difference in treatment is discriminatory if it has no objective or reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the aims employed and the aim sought to be realised (op. cit., p. 18, para. 41).  

42.The Commission recalls that the Convention does not guarantee freedom of profession, including the right to become a chartered accountant. As a result, States remain free to regulate access to the profession of chartered accountants provided that the rights guaranteed under the Convention and its Protocols are not violated.

43.The Commission notes that the law excluding all persons who have committed felonies from the profession of a chartered accountant is in certain respects overbroad. There exist felonies, such as refusing to serve in the armed forces, which can have no relationship with the exercise of the profession.

44.The Commission also notes that the applicant is a Jehovah’s Witness. As such, he was bound to refuse to enlist in the military forces and to be convicted for this reason.

45.The Commission cannot ignore the fact that the applicant refused to serve in the armed forces because of his religious beliefs. Moreover, the Commission notes that the applicant never refused to comply with his general civic duties. At the time of the applicant’s conviction the possibility of alternative service did not exist in Greece. As a result, Jehovah’s Witnesses were faced with the choice of either serving in the armed forces or being convicted. In these circumstances, the Commission considers that the applicant’s conviction amounted to an interference with his right to manifest his religion.

46.The Commission has previously considered that a sentence passed for refusal to perform military service cannot constitute in itself a breach of Article 9 of the Convention (No. 10640/83, Dec. 9.5.84, D.R. 38, p. 219). However, in the present case the Commission is not called upon to examine whether the applicant’s original conviction was justified under the second paragraph of Article 9. In any event, the Commission could not conduct such an examination since the applicant was convicted in 1983 and Greece has recognised the competence of the Commission to receive individual applications in relation to acts, decisions, facts or events subsequent to 19 November 1985.  Moreover, the application was submitted more than 6 months after the applicant’s final conviction.

47.The Commission notes that the applicant’s conviction had further consequences which became apparent for the first time on 8 February 1989. This is the date when the Chartered Accountants’ Board decided that, although the applicant had been successful in the examination for chartered accountants, he could not be appointed to such a post because of his earlier criminal conviction for refusing to perform military service. The decision of the Board was upheld by the Council of State on 28 June 1996. The Commission considers that, for the reasons mentioned above, the Council of State’s judgment also constitutes an interference with the applicant’s right to manifest his religion.

48.Moreover, the Commission considers that, independently of whether the applicant’s original conviction could be justified in a democratic society or not, its further consequences were disproportionate given the lack of any relationship between the offence committed by the applicant and the profession of a chartered accountant. The Commission also considers that the drafters of the rules governing access to the chartered accountants’ profession could have reasonably foreseen that it would be impossible for most male Jehovah’s Witnesses to be appointed to such a post.

49.The Commission considers that the right not to be discriminated in the enjoyment of the rights guaranteed under the Convention is not violated only when States treat differently persons in analogous situations without providing an objective and reasonable justification. It is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are different.  

50.In the circumstances of the case, the Commission finds no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other felonies. By failing to introduce such a distinction, i.e. by failing to introduce an exception to the rule barring from the profession of chartered accountants persons who have been convicted of felonies, the drafters of the rules violated the applicant’s right not to be discriminated in the enjoyment of his right to manifest his religion.  

CONCLUSION

51.The Commission concludes, by 22 votes to 6, that in the present case there has been a violation of Article 9 taken in conjunction with Article 14 of the Convention.

D.As regards Article 9 of the Convention

52. The Commission considers that, given that it has found a breach of Article 9 of the Convention in conjunction with Article 14, it is not necessary to examine whether there has also been a violation of Article 9 on its own.

CONCLUSION

53.The Commission concludes, by 21 votes to 7, that in the present case it is not necessary to examine whether there has been a violation of Article 9 of the Convention on its own.

E. As regards Article 6 para. 1 of the Convention

54. Article 6 para. 1 of the Convention, insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations (...) everyone is entitled to a (...) hearing within a reasonable time by a(n) (...) tribunal established by law."

55. The applicant submits that the length of the proceedings he instituted before the Council of State cannot be justified in the particular circumstances, especially since his case did not involve the taking of factual evidence.

56. The Government argue that the length of the proceedings was reasonable given the complexity of the legal issues involved and the Council of State's case-load.

57. The Commission recalls that, although one is appointed to a post of chartered accountant by administrative decision, this is one of the independent professions. It follows that proceedings instituted by a successful candidate to challenge the refusal of the authorities to appoint him to such a post involve the determination of a civil right. As a result, the Commission considers that Article 6 para. 1 of the Convention applies to the proceedings instituted by the applicant before the Council of State.

58. The proceedings in question began on 8 May 1989, when the applicant lodged his action in the Council of State, and ended on 28 June 1996, when the Third Chamber of the Council rejected it. They lasted, therefore, seven years, one month and twenty days.

59. The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

60. The Commission considers that, on the one hand, the case involved complex legal issues, as is evidenced by the fact that it was at one stage referred by the Third Chamber to the Plenary for a decision on a matter of principle.

61. On the other hand, the Commission does not consider that any delays were attributable to the applicant.

62. As regards the conduct of the authorities, the Commission notes that there were two important periods of inactivity in the proceedings. The first such period was of almost two years and lasted from 8 May 1989 when the proceedings were instituted to 18 April 1991 when the Third Chamber held its first hearing on the case. The second important period of inactivity was of almost one year and lasted from 11 November 1994, when the Plenary issued its decision, to 26 October 1995, when the Third Chamber finally rejected the case. The Government offer no explanation for these periods of inactivity other than a general reference to the case-load of the Council of State.

63. However, the Commission recalls that, in accordance with the Convention organs' case-law, it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy, judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

64. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

65.The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

F.Recapitulation

66. The Commission concludes, by 22 votes to 6, that in the present case there has been a violation of Article 9 in conjunction with Article 14 of the Convention (see para. 51).  

67. The Commission concludes, by 21 votes to 7, that in the present case it is not necessary to examine whether there has been a violation of Article 9 of the Convention on its own (see para. 53).

68.The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (see para. 65).

M.-T. SCHOEPFERS. TRECHSEL

SecretaryPresident

to the Commissionof the Commission

(Or. English)

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)

 CONCURRING OPINION OF Mr E.A. ALKEMA

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.

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