TSIRLIS and KOULOUMPAS v. GREECE



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 19233/91

                       Dimitrios Tsirlis

                            against

                            Greece

                              and

                   Application No. 19234/91

                     Timotheos Kouloumpas

                            against

                            Greece

                   REPORT OF THE COMMISSION

                   (adopted on 7 March 1996)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

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

     B.   The proceedings

          (paras. 5-12) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 13-17). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 18-62) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 18-53). . . . . . . . . . . . . . . . . . .3

          Application No. 19233/91

          (paras. 18-36). . . . . . . . . . . . . . . . . . .3

          Application No. 19234/91

          (paras. 37-53). . . . . . . . . . . . . . . . . . .6

     B.   Relevant domestic law

          (paras. 54-62). . . . . . . . . . . . . . . . . . .8

III. OPINION OF THE COMMISSION

     (paras. 63-137). . . . . . . . . . . . . . . . . . . . 11

     A.   Issues declared admissible

          (para. 63). . . . . . . . . . . . . . . . . . . . 11

     B.   Points at issue

          (para. 64). . . . . . . . . . . . . . . . . . . . 11

     C.   As regards Article 5 para. 1 of the Convention

          (paras. 65-77). . . . . . . . . . . . . . . . . . 11

          CONCLUSION

          (para. 78). . . . . . . . . . . . . . . . . . . . 14

     D.   As regards Article 5 para. 5 of the Convention

          (paras. 79-82). . . . . . . . . . . . . . . . . . 14

          CONCLUSION

          (para. 83). . . . . . . . . . . . . . . . . . . . 15

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

          (paras. 84-106) . . . . . . . . . . . . . . . . . 15

     1.   The applicability of Article 6 para. 1 of the Convention

          (paras. 85-93). . . . . . . . . . . . . . . . . . 15

                       TABLE OF CONTENTS

                                                          Page

     2.   Compliance with Article 6 para. 1 of the Convention

          (paras. 94-106) . . . . . . . . . . . . . . . . . 17

          CONCLUSION

          (para. 107) . . . . . . . . . . . . . . . . . . . 19

     F.   As regards Article 13 of the Convention

          (paras. 108-110). . . . . . . . . . . . . . . . . 19

          CONCLUSION

          (para. 111) . . . . . . . . . . . . . . . . . . . 19

     G.   As regards Article 14 in conjunction with

          Article 9 of the Convention

          (paras. 112-119). . . . . . . . . . . . . . . . . 19

          CONCLUSION

          (para. 120) . . . . . . . . . . . . . . . . . . . 21

     H.   As regards Article 9 of the Convention

          (paras. 121-124). . . . . . . . . . . . . . . . . 21

          CONCLUSION

          (para. 125) . . . . . . . . . . . . . . . . . . . 22

     I.   As regards Article 3 of the Convention

          (paras. 126-129). . . . . . . . . . . . . . . . . 22

          CONCLUSION

          (para. 130) . . . . . . . . . . . . . . . . . . . 22

     J.   Recapitulation

          (para. 131-137) . . . . . . . . . . . . . . . . . 23

SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL,

JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI. 24

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . 25

PARTIALLY DISSENTING OPINION OF MR. G. RESS . . . . . . . . 26

APPENDIX I:    DECISION OF THE COMMISSION

               AS TO THE ADMISSIBILITY

               OF THE APPLICATION No. 19233/91. . . . . . . 28

APPENDIX II:   DECISION OF THE COMMISSION

               AS TO THE ADMISSIBILITY

               OF THE APPLICATION No. 19234/94. . . . . . . 42

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 applicants are Greek citizens, both born in 1964 and resident

in Thiva. They were represented before the Commission by

Mr. P. Bitsaxis, an attorney at law practising in Athens.

3.   The applications are 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, Deputy Member (Paredros) of the Legal Advisory

Council of the State, and Mrs. Ch. Sitara, Assistant Member (Dikastikos

Antiprosopos) of the Legal Advisory Council of the State.

4.   The case concerns the military authorities' refusal to recognise

that the applicants were ministers of a known religion, the applicants'

imprisonment following a first instance conviction which was quashed

on appeal, the failure of the military courts to grant the applicants

compensation for the period they spent in detention and  the fairness

of the proceedings relating to the applicants' compensation claim. The

applicants invoke Articles 3, 5, 6, 9, 13 and 14 of the Convention.

B.   The proceedings

5.   Both applications were introduced on 26 November 1991 and

registered on 19 December 1991.

6.   On 30 August 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

applications to the respondent Government and to invite the parties to

submit written observations on their admissibility and merits.

7.   The Government's observations were submitted on 13 December 1993

after an extension of the time-limit fixed for this purpose.  The

applicants replied on 24 February 1994.

8.   On 29 November 1994 the Commission decided to invite the

respondent Government to submit additional observations on both

applicants'  complaints under Articles 3, 9 and 14 of the Convention.

9.   The Government's additional observations were submitted on

27 February 1995. The applicants replied on 2 May 1995.

10.  On 4 September 1995 the Commission declared inadmissible the

applicants' complaints under Article 5 para. 1 (c) and 7 of the

Convention. It declared admissible the remainder of the applications.

It also decided to join the two applications.

11.  The text of the Commission's decision on admissibility was sent

to the parties on 14 September 1995 and they were invited to submit

such further information or observations on the merits as they wished.

No further submissions were received from the parties.

12.  After declaring the case admissible, the Commission, acting in

accordance with 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

13.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          MM.  S. TRECHSEL, President

               H. DANELIUS

               C.L. ROZAKIS

               E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H.G. SCHERMERS

          Mrs. G.H. THUNE

          Mr.  F. MARTINEZ

          Mrs. J. LIDDY

          MM.  L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               M.A. NOWICKI

               I. CABRAL BARRETO

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               E. KONSTANTINOV

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

14.  The text of this Report was adopted on 7 March 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15.  The purpose of the Report, pursuant to 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.

16.  The Commission's decision on the admissibility of the first

application is attached hereto as Appendix I and the Commission's

decision on the admissibility of the second application is attached

hereto as Appendix II.

17.  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

Application No. 19233/91

18.  On 4 November 1987 the applicant was appointed religious minister

by the Central Congregation of the Christian Jehovah's Witnesses of

Greece. He was given the authority, inter alia, to perform wedding

ceremonies between persons of this religion, in accordance with

Article 1367 of the Civil Code, and to notify such weddings to the

competent registry offices. By letter of 20 November 1987 the

Prefecture of Eastern Attica notified the registry offices of Eastern

Attica of this appointment.

19.  On 13 February 1990 the applicant lodged an application with the

Recruitment Office of Eastern Attica to be exempted from military

service, in accordance with Article 5 of Law 1763/1988 which grants

such a right to all ministers of "known religions". On 28 February 1990

the Eastern Attica Military Office rejected the application on the

ground that Jehovah's Witnesses were not a "known religion". The

applicant lodged immediately an administrative appeal with the Director

for Recruitment of the General Headquarters for National Defence.

20.  While his administrative appeal was pending, the applicant was

ordered by the Recruitment Office of Eastern Attica to report for duty

at a military training centre in Rethimno on 6 March 1990. The

applicant presented himself at the Rethimno centre, as ordered, but

refused to enlist, invoking his status of a minister of a known

religion. More in particular, the applicant refused to wear a military

uniform as ordered by a military officer. He was arrested, charged with

insubordination and placed in detention on remand.

21.  On 22 March 1990 the Director for Recruitment of the General

Headquarters for National Defence rejected the applicant's appeal

against the decision of the Eastern Attica Recruitment Office, on the

ground that Jehovah's Witnesses were not a "known religion".

22.  On 30 April 1990 the Permanent Military Court (Stratodikio) of

Chania, composed of two officers with legal training and three other

officers, examined the criminal charges against the applicant. The

applicant claimed that he was innocent on the ground that he was a

minister of a known religion exempted from military service. At the end

of the hearing the president of the court put the following question

to its members:

     "Is (the applicant), who is a Jehovah's Witness, guilty of

     having refused to obey, while serving in the military, an

     order given by his commanding officer to perform a certain

     duty, i.e. to pick up clothing articles necessary for his

     training as an unarmed soldier, claiming that the religious

     convictions of Jehovah's Witnesses do not permit him to do

     so?"

The court, unanimously, answered the question in the affirmative, found

the applicant guilty of insubordination and sentenced him to four

years' imprisonment from which it deducted the period the applicant had

spent in provisional detention.

23.  On 4 May 1990 the applicant appealed against this decision before

the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).

24.  On 21 May 1990 the applicant lodged before the Council of State

(Simvulio tis Epikratias) an action for the annulment of the decision

of 22 March 1990 of the Director for Recruitment of the General

Headquarters for National Defence.

25.  On 19 June 1990 the applicant's appeal came up for hearing before

the Courts-Martial Appeal Court, being a court composed of five

military officers with legal training. The defence requested the

applicant's acquittal or, alternatively, the adjournment of the hearing

pending the decision of the Council of State on his appeal. The defence

also requested the applicant's provisional release under Article 352

para. 3 of the Code of Criminal Procedure. The court decided to adjourn

the hearing to a date which would be fixed by the Public Prosecutor

(Epitropos) in order to enable the latter to produce a copy of the

applicant's original application for an exemption and of the final

decision thereon of the Director for Recruitment of the General

Headquarters for National Defence. It further considered that the

applicant should not be provisionally released under Article 352

para. 3 of the Code of Criminal Procedure.

26.  On 12 September 1990 the applicant requested the Council of State

to order the suspension of the execution of the decision of the

Director for Recruitment of the General Headquarters for National

Defence refusing to exempt him from military service.

27.  On 29 November 1990 the applicant's appeal came up again for

hearing before the Courts-Martial Appeal Court. In the meantime the

Fourth Chamber of the Council of State had issued decision No. 3601/90

in which the right of Jehovah's Witnesses religious ministers to be

exempted from military service was expressly upheld. The Public

Prosecutor requested the adjournment of the hearing to a date to be

fixed by himself with a view to obtaining the opinion of the Director

for Recruitment of the General Headquarters for National Defence on the

following matter:

     "Is the accused under an obligation to perform military

     service in the light of decision No. 3601/90 of the Fourth

     Chamber of the Council of State which quashed a decision of

     the Director for Recruitment of the General Headquarters

     for National Defence which had rejected an application for

     exemption from military service lodged by another accused

     person who was a religious minister of the Central

     Congregation of the Christian Jehovah's Witnesses .... ?"

28.  The Public Prosecutor further proposed that the applicant's

provisional detention should be continued. The defence agreed to the

adjournment of the hearing. It further considered that the question of

the applicant's provisional release "should be left to the judgment of

the court". The court granted the prosecution's request and agreed with

its proposal that the applicant should not be provisionally released

under Article 352 para. 3 of the Code of Criminal Procedure.

29.  On 16 April 1991 the applicant's appeal came up for hearing for

the third time before the Courts-Martial Appeal Court. A hearing had

been fixed on the same day for the action the applicant had lodged

before the Council of State for the annulment of the decision of

22 March 1990 of the Director for Recruitment of the General

Headquarters for National Defence.

30.  The Public Prosecutor of the Courts-Martial Appeal Court proposed

the adjournment of the hearing of the applicant's criminal appeal,

pending the decision of the Council of State. He also proposed the

continuation of the applicant's detention. The defence considered that

the first matter should be left to the judgment of the court. It

requested, however, the applicant's provisional release.

31.  The court decided to adjourn the hearing to a date to be fixed

by the Public Prosecutor in order to obtain the opinion of the Director

for Recruitment of the General Headquarters for National Defence on the

following question: "Was the accused exempted from the obligation to

report for duty, in the light of his purported status of a religious

minister?" It further ordered the continuation of the applicant's

provisional detention.

32.  On 24 April 1991 the Council of State annulled the decision of

the Director for Recruitment of the General Headquarters for National

Defence by which the applicant's application for exemption had been

refused, on the ground that Jehovah's Witnesses are a known religion

and the administration had not challenged the evidence produced by the

applicant that he was a minister of that religion.

33.  On 8 May 1991 a three-member committee of the Council of State

decided that, in the circumstances, there was no need to pronounce on

the applicant's petition for the suspension of the execution of the

above-mentioned decision of the Director for Recruitment of the General

Headquarters for National Defence.

34.  On 30 May 1991 the Courts-Martial Appeal Court, composed of five

military judges, examined the applicant's appeal against the judgment

of 30 April 1990 of the Permanent Military Court of Chania. The issue

before the court, as formulated by its president, was the following:

     "Is (the applicant), a member of the religious sect of

     Jehovah's Witnesses, guilty of having refused to obey,

     while serving in the military, an order given by his

     commanding officer to perform a certain duty, i.e. to pick

     up clothing articles necessary for his training as an

     unarmed soldier, claiming that the religious convictions of

     Jehovah's Witnesses do not permit him to do so?"

35.  Having heard the evidence and the submissions of the parties on

the question of the applicant's guilt, the court withdrew for

deliberations. After the deliberations the president announced the

verdict. The applicant was acquitted, by three votes to two, on the

ground that "there was no act". The dissenting judges considered that

"the accused (was) not a religious minister". The following order was

joined to and read out together with the court's verdict: "The State

is under no obligation to compensate the applicant  for his detention

between 6 March 1990 and 29 May 1991, because this detention was due

to the applicant's gross negligence".

36.  The applicant was immediately released from prison and was

provisionally discharged from the armed forces on the basis that he was

"a religious minister".

Application No. 19234/91

37.  On 4 November 1987 the applicant was appointed religious minister

by the Central Congregation of the Christian Jehovah's Witnesses of

Greece. He was given the authority, inter alia, to perform wedding

ceremonies between persons of this religion, in accordance with

Article 1367 of the Civil Code, and to notify such weddings to the

competent registry offices. By letter of 20 November 1987 the

Prefecture of Eastern Attica notified the registry offices of Eastern

Attica of this appointment.

38.  On 29 November 1989 the applicant lodged an application with the

Recruitment Office of Patras to be exempted from military service, in

accordance with Article 5 of Law 1763/1988 which grants such a right

to all ministers of "known religions". On 1  March 1990 the Patras

Recruitment Office rejected the application on the ground that

Jehovah's Witnesses were not a "known religion". The applicant lodged

immediately an administrative appeal to the Director for Recruitment

of the General Headquarters for National Defence.

39.  While his administrative appeal was pending, the applicant was

ordered by the Recruitment Office of Patras to report for duty at a

military training centre in Sparta on 6 March 1990. The applicant

presented himself at the Sparta centre, as ordered, but refused to

enlist, invoking his status of a minister of a known religion. More in

particular, the applicant refused to wear a military uniform as ordered

by a military officer. He was arrested, charged with insubordination

and placed in detention on remand.

40.  On 6 April 1990 the Director for Recruitment of the General

Headquarters for National Defence rejected the applicant's appeal

against the decision of the Patras Recruitment Office on the ground

that Jehovah's Witnesses were not a known religion.

41.  On 21 May 1990 the applicant lodged before the Council of State

(Simvulio tis Epikratias) an action for the annulment of the decision

of 6 April 1990 of the Director for Recruitment of the General

Headquarters for National Defence.

42.  On 30 May 1990 the Permanent Military Court (Stratodikio) of

Athens, composed of one officer with legal training and four other

officers, examined the criminal charges against the applicant. The

applicant claimed that he was innocent on the gerund that he was a

minister of a known religion exempted form military service. At the end

of the hearing the president of the court put the following question

to its members:

     "Is (the applicant), who is a Jehovah's Witness, guilty of

     having refused to obey, while serving in the military, an

     order given by his commanding officer to perform a certain

     duty, i.e. to pick up clothing articles necessary for his

     training as an unarmed soldier, claiming that the religious

     convictions of Jehovah's Witnesses do not permit him to do

     so?"

The court, unanimously, answered the question in the affirmative, found

the applicant guilty of insubordination and sentenced him to four

years' imprisonment from which it deducted the period the applicant had

spent in provisional detention.

43.  On 1 June 1990 the applicant appealed against this decision

before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).

44.  On 12 July 1990 the applicant's appeal came up for hearing before

the Courts-Martial Appeal Court, being a court composed of five

officers with legal training. The defence requested the applicant's

acquittal or, alternatively, the adjournment of the hearing pending the

decision of the Council of State on his appeal. The court decided to

adjourn the hearing to a date which would be fixed by the Public

Prosecutor (Epitropos) in order to enable the latter to produce copies

of certain documents of the Ministry of Education and the Holy Synod

of the Orthodox Church of Greece which had been relied on by the army

authorities to refuse the applicant's application for exemption from

military service. The court further agreed with the view of both the

prosecution and the defence that the applicant should not be

provisionally released under Article 352 para. 3 of the Code of

Criminal Procedure.

45.  On 12 September 1990 the applicant requested the Council of State

to order the suspension of the execution of the decision of the

Director for Recruitment of the General Headquarters for National

Defence refusing to exempt him from military service.

46.  On 27 November 1990 the applicant's appeal came up again for

hearing before the Courts-Martial Appeal Court. In the meantime the

Fourth Chamber of the Council of State had issued decision No. 3601/90

in which the right of Jehovah's Witnesses religious ministers to be

exempted from military service was expressly upheld. The Public

Prosecutor requested the adjournment of the hearing to a date to be

fixed by himself with a view to obtaining the opinion of the Director

for Recruitment of the General Headquarters for National Defence on the

following matter:

     "Is the accused under an obligation to perform military

     service in the light of decision No. 3601/90 of the Fourth

     Chamber of the Council of State which quashed a decision of

     the Director for Recruitment of the General Headquarters

     for National Defence which had rejected an application for

     exemption from military service lodged by another accused

     person who was a religious minister of the Central

     Congregation of the Christian Jehovah's Witnesses ... ?"

47.  The Public Prosecutor further proposed that the applicant's

provisional detention should be continued. The defence requested either

the continuation of the proceedings or the adjournment of the hearing

to a date fixed by the court. It also requested the applicant's

provisional release. The court granted the prosecution's request and

agreed with its proposal that the applicant should not be released

provisionally under Article 352 para. 3 of the Code of Criminal

Procedure.

48.  On 7 March 1991 the applicant's appeal came up for hearing for

the third time before the Courts-Martial Appeal Court. The Public

Prosecutor proposed the adjournment of the hearing on the ground that

the Director for Recruitment of the General Headquarters for National

Defence should give his opinion on the following matter: "Is the

accused already exempted from the obligation to perform military

service in view of the action he has lodged with the Council of State?"

He also proposed the continuation of the applicant's detention. The

court accepted both proposals, despite the fact that they had been

opposed by the defence.

49.  On 24 April 1991 the Council of State annulled the decision of

the General Headquarters for National Defence by which the applicant's

application for exemption had been refused, on the ground that

Jehovah's Witnesses are a known religion and the administration had not

challenged the evidence produced by the applicant that he was a

minister of that religion.

50.  On 8 May 1991 a three-member committee of the Council of State

decided that, in the circumstances, there was no need to pronounce on

the applicant's petition for the suspension of the execution of the

above-mentioned decision of the General Headquarters for National

Defence.

51.  On 29 May 1991 the Courts-Martial Appeal Court, composed of five

military judges,  examined the applicant's appeal against the judgment

of 30 May 1990 of the Permanent Military Court of Athens. The issue

before the court, as formulated by its president, was the following:

     "Is (the applicant), a member of the religious sect of

     Jehovah's Witnesses, guilty of having refused to obey,

     while serving in the military, an order given by his

     commanding officer to perform a certain duty, i.e. to pick

     up clothing articles necessary for his training as an

     unarmed soldier, claiming that the religious convictions of

     Jehovah's Witnesses do not permit him to do so?"

52.  Having heard the evidence and the submissions of the parties on

the question of the applicant's guilt, the court withdrew for

deliberations. After the deliberations the president announced the

verdict. The applicant was acquitted, by three votes to two, on the

ground that "there was no act". The dissenting judges considered that

"the accused (was) not a religious minister". The following order was

joined to and read out together with the court's verdict: "The State

is under no obligation to compensate the applicant  for his detention

between 6 March 1990 and 29 May 1991, because this detention was due

to the applicant's gross negligence".

53.  The applicant was immediately released from prison and was

provisionally discharged from the armed forces on the basis that he was

"a religious minister".

B.   Relevant domestic law

54.  Article 5 of Law 1763/1988 exempts all ministers of "known

religions" from military service.

55.  The Council of State has repeatedly considered that Jehovah's

Witnesses are a "known" religion, in that their beliefs and manner of

worship are known and not secret (decisions Nos. 2105 and 2106/75,

4635/77, 2484/80, 4620/85, 790/86 and 3533/86). In its decision

No. 3601/90 the Council of State expressly upheld the right of

Jehovah's Witnesses religious ministers to be exempted from military

service.

56.  Article 70 of the Army Criminal Code provides the following:

     "A member of the armed forces who refuses .... to obey an

     order by his superior to perform one of his duties is

     punished ...".

57.  On 16 March 1992 the Permanent Military Court of Athens

considered that a Jehovah's Witnesses religious minister who had

refused to pick up military clothing when first called upon to enlist

in the army was not guilty of insubordination. The court considered

that here had been no act of insubordination because he had no

obligation to perform military service being a minister of a known

religion.

58.  Article 303A para. 2 of the Army Criminal Code provides the

following:

     "In all cases, even if the investigation has been concluded

     and until the final decision of the first instance court,

     the duration of the provisional detention of a person

     accused of felony cannot exceed twelve months. In very

     exceptional cases, the above upper limit may be extended by

     up to six months by decision of the indictments' chamber

     ..."

59.  Article 407 para. 1 of the Army Criminal Code provides the

following:

     "The lodging of an appeal, which complies with the

     requirements of law, suspends the enforcement of the

     relevant court decision only insofar as the latter imposes

     the penalties of death, cashiering and reduction in or

     falling from rank. A person who has received a penalty not

     exceeding one year's imprisonment may apply ... for the

     suspension of the enforcement of the relevant court

     decision, pending the outcome of his appeal".

60.  Article 434 of the Army Criminal Code provides that, if the Army

Criminal Code does not regulate a procedural issue, the Code of

Criminal Procedure applies.

61.  Article 352 para. 3 of the Code of Criminal Procedure provides

the following:

     "When the hearing is adjourned ...., the court may order,

     ..., the provisional release of the accused ...".

62.  The Code of Criminal Procedure provides as follows:

     Article 533 para. 2

     "Persons who have been detained on remand and subsequently

     acquitted ... have the right to request compensation ...,

     if it has been established in the proceedings that they did

     not commit the criminal offence for which they have been

     detained on remand ... A person who has been detained

     following conviction by (a) court should be considered for

     the purposes of this article to be a person who has been

     detained on remand, if his conviction is quashed following

     an appeal."

     Article 535 para. 1

     "The State does not have any obligation to compensate a

     person who ... has been detained on remand if the latter,

     intentionally or by gross negligence, was responsible for

     his own detention."

     Article 536 paras. 1 and 2

     "Upon an application submitted orally by the person who has

     been acquitted, the court which heard the case shall decide

     on the State's obligation to pay compensation in a separate

     decision issued at the same time as the verdict. However,

     the court may also issue such a decision proprio motu ...

     The decision regarding the obligation of the State to pay

     compensation cannot be challenged separately; it is,

     however, quashed when the decision on the principal issue

     of the criminal trial is reversed."

     Article 537 paras. 1 and 2

     "The person who has suffered prejudice may request

     compensation at a later stage before the same court.

     In these circumstances, the application must be submitted

     to the public prosecutor of this court strictly within

     forty-eight hours from the pronouncement of the judgment in

     open court."

     Article 539 para. 1

     "After it has been decided that the State must pay

     compensation, the person entitled thereto may bring his

     claim before the civil courts, which may not re-examine the

     existence of the State's obligation."

     Article 540 para. 1

     "Persons who have been unfairly ... detained on remand must

     be compensated for any material prejudice they have

     suffered as a result of their ... detention. They must also

     be compensated for moral damage ...".

III. OPINION OF THE COMMISSION

A.   Issues declared admissible

63.  The Commission has declared admissible the applicants' complaints

concerning the lawfulness of their detention after conviction; the

refusal of the military court of appeal to grant them compensation in

respect of their detention without a hearing; inhuman and degrading

treatment; violations of their freedom of religion; and discrimination.

It also declared admissible the issue arising from the manner in which

the decisions of the appeal court on the applicants' entitlement to

compensation were reasoned.

B.   Points at issue

64.  The issues to be determined are the following:

-    Did the applicants' detention after conviction at first instance

     constitute a violation of Article 5 para. 1 (Art. 5-1) of the

     Convention?

-    Did the failure of the military court of appeal to grant the

     applicants compensation for the period they spent in detention

     amount to a violation of Article 5 para. 5 (Art. 5-5) of the

     Convention?

-    Did the military court's refusal of compensation give rise to a

     violation of the applicants' right to a fair hearing under

     Article 6 para. 1 (Art. 6-1) of the Convention?

-    Did the applicants have an effective remedy under Article 13

     (Art. 13) of the Convention for the alleged violation of their

     right to a fair hearing?

-    Were the applicants subjected to discrimination in the enjoyment

     of their right to freedom of religion contrary to Article 14 in

     conjunction with Article 9 (Art. 14+9) of the Convention?

-    Was there a violation of the applicants' right to freedom of

     religion under Article 9 (Art. 9) of the Convention?

-    Were the applicants subjected to inhuman and degrading treatment

     contrary to Article 3 (Art. 3) of the Convention?

C.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

65.  Article 5 para. 1 (Art. 5-1) of the Convention provides the

following:

     "Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the

     following cases and in accordance with a procedure

     prescribed by law:

          a.   the lawful detention of a person after

     conviction by a competent court ......."

66.  The first applicant complains that his detention between

30 April 1990 and 30 May 1991 was not "lawful" within the meaning of

Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. The same

complaint is raised by the second applicant in respect of his detention

between 30 May 1990 and 29 May 1991. The applicants submit that their

convictions by the Permanent Military Courts of Chania and Athens were

"totally arbitrary" and "not founded on the law", since it was clear

from the outset of the proceedings that they were not liable for

military service. Contrary to what the respondent Government argue,

their convictions were the direct result of the refusal of the military

courts to abide, initially, by the earlier case-law of the Council of

State which recognised the status of Jehovah's Witnesses as a "known

religion" and, later, by decision No. 3601/90 of the Council of State

which expressly affirmed the right of the religious ministers of

Jehovah's Witnesses to be exempted from military service.

67.  The Government submit that there was no violation of Article 5

para. 1 (a) (Art. 5-1,-a). The applicants were detained because they

were convicted by competent courts. The offence of insubordination is

committed when a member of the armed forces refuses to comply with an

order given by one of his hierarchical superiors. The order does not

have to be lawful. The applicants committed the offence when they

refused to obey the order to wear a military uniform. The military

courts which convicted them could not take into account any other facts

or considerations.

68.  The Commission notes that the appeal court, when adjourning the

examination of the applicants' appeals, considered the possibility of

ordering the applicants' release under Article 352 para. 3 of the Code

of Criminal Procedure, which makes reference to persons detained on

remand. Nevertheless, the Commission is satisfied that, in accordance

with domestic law, in proceedings before military courts the accused's

provisional detention is terminated upon pronouncement of the decision

of the first instance court. This is not contested by the respondent

Government who submit that the basis under domestic law for the first

applicant's detention between  30 April 1990 and 30 May 1991 and for

the second applicant's detention between 30 May 1990 and 29 May 1991

was their first instance conviction for insubordination. It follows

that the "lawfulness" of the above-mentioned periods of detention must

be examined under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.

69.  The Commission further notes that both applicants' convictions

were quashed on appeal and recalls in this connection that it has held

that a national court's decision setting aside a conviction does not

retroactively affect under Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention the "lawfulness" of the detention following that conviction

(see Krzycki v. FRG, Comm. Report 9.3.78, D.R. 13 p. 57, with further

references).

The Commission has also held that a person's detention may be "lawful"

even if the court which convicted this person committed errors in

applying domestic law (ibid). However, it has not excluded that there

might be cases where a different conclusion is warranted (see

No. 6694/74, Dec. 1.3.77, D.R. 8 p. 73).

70.  Moreover, in accordance with the case-law of the European Court

of Human Rights, "if detention is to be lawful .... it must essentially

comply with national law and the substantive and procedural rules

thereof (see, in the context of Article 5 para. 1 (e) (Art. 5-1,-e),

Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A

no. 244, p. 21, para. 63; similar criteria were applied to detention

within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court

H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 22, para.

41). Moreover, "the Convention imposes requirements over and above the

substantive and procedural rules of national law in ascertaining the

compatibility of deprivation of liberty with Article 5 (Art. 5), namely

that the individual

should be protected from arbitrariness" (see, in the context of

Article 5 para. 1 (a) and (b) (Art. 5-1,a,-b), Benham v. United

Kingdom, Comm. Report 29.11.94, para. 49, unpublished, with reference

to Eur. Court H.R., Van der Leer judgment of 21 February 1990, Series A

no. 170, p. 12, para. 22).

71.  The Courts-Martial Appeal Court did not make a formal finding

that the applicants' detention following their first instance

convictions was unlawful. As a result, the Commission must examine

itself the applicants' claim that their convictions were arbitrary and

unfounded, because they could not have committed the offence of

insubordination since they were not liable for military service. The

Commission notes that Article 5 of Law 1763/1988 exempts all ministers

of "known" religions from military service. The applicants claim that

the first instance courts clearly misconstrued the above provision when

failing to apply it in their case. However, before examining that

claim, the Commission must address the question whether the applicants'

liability for military service was a factor to be taken into

consideration in the examination of the charges for insubordination.

72.  The Commission notes in this connection that the decisions of the

first instance military courts which convicted the applicants did not

contain any reasons. However, the court of appeal repeatedly adjourned

the examination of the applicants' appeals invoking a variety of

reasons all of which, however, related to the applicants' liability to

perform military service. Having done that, the court of appeal

hastened to pronounce the applicants' acquittal immediately after the

delivery of the judgments of the Council of State which annulled the

decisions of the Director for Recruitment of the General Headquarters

for National Defence by which the applicants' applications for

exemption had been refused. The reasons for annulling the above-

mentioned decisions were that Jehovah's Witnesses were a "known

religion" and the administration had not challenged the evidence

produced by the applicants and showing that they were ministers of that

religion. Finally, the dissenting judges of the court of appeal

considered that the applicants should not have been acquitted because

"they were not religious ministers".

73.  On the basis of all the above, the Commission considers that the

question of the applicants' liability to perform military service was

central for their criminal responsibility for insubordination. It is

in this light that the appeal court's finding that the applicants were

innocent because "there was no act" must be understood. When convicting

the applicants the first instance military courts must, therefore, have

implicitly established that the applicants were not ministers of a

"known religion" and were, therefore, liable for military service.

74.  In considering that the applicants were liable to perform

military service the first instance military courts disregarded the

applicants' appointment as religious ministers by the Central

Congregation of the Christian Jehovah's Witnesses of Greece. This was,

however, an incontrovertible fact of which they had been made aware.

Moreover, all other State authorities had officially taken note of this

appointment and were prepared to draw the appropriate legal

consequences.

75.  Furthermore, the military courts ignored a series of decisions

of the Council of State to the effect that Jehovah's Witnesses are a

"known religion" preceding the enactment of Law 1763/1988. Although the

Council of State has no competence to examine appeals against decisions

of military courts, it is the highest administrative court in Greece.

As a result, its pronouncements on issues concerning the general

interpretation of a statute carry particular weight (see, mutatis

mutandis, Eur. Court H.R., Holy Monasteries judgment of

9 December 1994, Series A no. 301, p. 29, para. 51). It is precisely

on the above-mentioned decisions of the Council of State that the

European Court of Human Rights relied to conclude that Jehovah's

Witnesses generally enjoy the status of a "known religion" in Greece

(Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A no. 260,

p. 18, para. 32). Moreover, the Council of State had exclusive

competence to examine the legality of the very acts which brought the

applicants within the jurisdiction of the military courts, i.e. the

decisions of 22 March 1990 and 6 April 1990 of the Director for

Recruitment of the General Headquarters of National Defence to the

effect that the applicants were liable to perform military service

because Jehovah's Witnesses were not a "known religion".

76.  In deciding to ignore the applicants' appointment and the

decisions of the Council of State, the first instance military courts

clearly misconstrued Article 5 of Law 1763/1988, which exempts all

ministers of "known" religions from military service. The Commission

notes in this connection that the aim of the above-mentioned provision

is to protect religious groups in the practice of their beliefs.

77.  The Commission reaffirms that it is not competent to deal with

applications alleging that errors of law have been committed by

domestic courts, except where it considers that such errors involve a

violation of a right or freedom set out in the Convention (No. 458/59,

Dec. 29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73,

Collection 43, p. 71; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).

However, in the light of what is stated above, it has been established

that the applicants' conviction for insubordination had clearly no

basis in domestic law. As a result, the detention of the first

applicant between 30 April 1990 and 30 May 1991 and of  the second

applicant between 30 May 1990 and 29 May 1991 cannot be considered to

be "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a)

of the Convention.

     CONCLUSION

78.  The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention.

D.   As regards Article 5 para. 5 (Art. 5-5) of the Convention

79.  Article 5 para. 5 (Art. 5-5) of the Convention provides the

following:

     "Everyone who has been the victim of arrest or detention in

     contravention of the provisions of this Article shall have

     an enforceable right to compensation."

80.  The applicants complain that they did not receive compensation,

although they had been unlawfully detained.

81.  The Government submit that the applicants' detention was lawful

under Article 5 para. 1 (Art. 5-1) of the Convention. In any event the

applicants were responsible for their detention, because they did not

take timely action to obtain their exemption from military service.

Although they both became religious ministers in November 1987, the

first applicant did not apply for exemption before February 1990 and

the second applicant not before November 1989.

82.  The Commission has established that the detention of the first

applicant between 30 April 1990 and 30 May 1991 and the detention of

the second applicant between 30 May 1990 and 29 May 1991 were unlawful.

However, on 30 May 1991 and 29 May 1991 respectively the Courts-Martial

Appeal Court considered that the applicants were not entitled to

compensation. It follows that Article 5 para. 5 (Art. 5-5) of the

Convention has been violated.

     CONCLUSION

83.  The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 5 (Art. 5-5) of the Convention.

E.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

84.  Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

     relevant, provides as follows:

     "In the determination of his civil rights and obligations

     .... everyone is entitled to a fair .... hearing .... by a

     .... tribunal .... ."

1.   The applicability of Article 6 para. 1 (Art. 6-1) of the

     Convention

85.  The applicants submit that the proceedings on their entitlement

to compensation in respect of their detention following their first

instance convictions  involved a determination of their civil rights.

They argue that the rules governing compensation in respect of

detention following a conviction which was overturned on appeal are

nothing else than the application of the general principles of civil

liability in the particular context. Several elements point in this

direction. Once the obligation of the State to compensate is recognised

by the criminal court, it is a civil court which decides on the amount

of compensation; the detainee's claim may be transferred, attached and

inherited; it is subject to prescription; the detainee is compensated

in respect of pecuniary and non-pecuniary damage; persons depending on

the detainee may sue as well; the State may in turn sue the persons

who, acting illegally, became responsible for the detention.

86.  The Government submit that Article 6 (Art. 6) of the Convention

does not apply to the proceedings in question. The applicants'

entitlement to compensation was not decided in accordance with the

legal rules which govern the civil liability of the State in general,

but in accordance with a special set of rules applying exclusively to

detention ordered in the context of a criminal trial. In such cases

compensation is granted independently of the illegal character of the

detention and of the guilt of the State organs involved. Furthermore,

the applicable rules are of a public law character and the right to

liberty is not a civil right within the meaning of Article 6 (Art. 6)

of the Convention.

87.  The Commission recalls that Article 6 para. 1 (Art. 6-1) extends

to "disputes" (contestations) over a "right" which can be said, at

least on arguable grounds, to be recognised under domestic law. The

dispute must be genuine and serious; it may relate not only to the

actual existence of a right but also to its scope and the manner of its

exercise; and, finally, the "result" of the proceedings must be

"directly decisive" for the right in question (see Eur. Court H.R.,

Zander judgment of 25 November 1993, Series A no. 279-B, p. 38,

para. 22).

88.  As regards the question whether a right is of a "civil"

character, the Commission recalls that the concept of "civil rights and

obligations" is not to be interpreted solely by reference to the

respondent State's domestic law and that Article 6 para. 1 (Art. 6-1)

applies irrespective of the status of the parties, as well as of the

character of the legislation which governs how the dispute is to be

determined and the character of the authority which is invested with

jurisdiction in the matter (Eur. Court H.R., Baraona judgment of

8 July 1987, Series A no. 122, p. 17-18, para. 42). For a right to be

a "civil right" it is sufficient that the action is pecuniary in nature

and is founded on an alleged infringement of rights which are likewise

pecuniary rights (Eur. Court H.R., Éditions Périscope judgment of 26

March 1992, Series A no. 234, p. 66, para. 40).

89.  The Commission considers that, although the applicants never

asserted their claims before the competent military courts, it cannot

be excluded that there was a "dispute", since the applicants affirm

that they would have applied for compensation if they had not been

prevented from doing so by the Courts-Martial Appeal Court on

30 May 1991 and 29 May 1991 respectively.

90.  The Commission also considers that the applicants would have had

a "right" under domestic law to be compensated in respect of the period

they spent in detention following conviction at first instance if the

Courts-Martial Appeal Court had not found that their detention had been

due to their gross negligence. This transpires clearly from the

relevant provisions of the Code of Criminal Procedure. Thus,

Article 533 para. 2 of the Code of Criminal Procedure provides that

persons who have been detained on remand and subsequently acquitted

have the "right" to request compensation. Moreover, Article 535 para. 1

provides that the State does not have any "obligation" to compensate

a person who has been detained on remand if the latter, intentionally

or by gross negligence, was responsible for his own detention. It

follows that the granting of compensation did not depend on the

discretion of the military courts (see, a contrario, Eur. Court H.R.,

Masson and Van Zon judgment of 28 September 1995, to be published in

Series A no. 327, paras. 51-52).

91.  The Commission also notes that under Article 539 para. 1 of the

Code of Criminal Procedure the military court of appeal had the power

conclusively to decide whether the applicants were in principle

entitled to compensation. As a result, although the applicants would

have been required to institute further proceedings before the civil

courts if the military court had issued a decision in their favour, the

outcome of the proceedings before the military court was directly

decisive for the applicants' right to compensation. It follows that,

by refusing to grant the applicants compensation on 30 May 1991 and

29 May 1991, the Courts-Martial Appeal Court "determined" a "right"

which could arguably be said to be recognised under domestic law.

92.  Moreover, the decision taken by the above court on the

applicants' right of compensation under Article 533 et seq. of the Code

of Criminal Procedure concerned pecuniary and non-pecuniary damages

resulting from detention following convictions at first instance, which

were overturned on appeal. Therefore, the right at issue was a "civil

right" within the meaning of Article 6 (Art. 6) of the Convention,

notwithstanding the origin of the dispute and the fact that a criminal

court had jurisdiction (see, mutatis mutandis, Éditions Périscope

judgment, loc. cit.; A.M. and J.v.Z. v. the Netherlands, Comm. Report

4.7.94, para. 53).

93.  For these reasons, the Commission considers that, by refusing to

grant the applicants compensation in its decisions of 30 May 1991 and

29 May 1991, the Courts-Martial Appeal Court "determined" a "civil

right" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

2.   Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

94.  The applicants complain that the military court refused them

compensation without hearing them. They submit that the Code of

Criminal Procedure provides that an acquitted person may present his

claim for compensation at the latest 48 hours after the decision of the

criminal court. In the particular circumstances, the applicants were

effectively prevented by the military court from exercising their

rights. The question of their entitlement to compensation was examined

proprio motu in the course of the court's deliberations on the question

of their guilt. The applicants had not and could not have been heard

at this stage of the proceedings on the issue of compensation. The

court, nevertheless, hastened to join its negative decisions on this

issue to its verdicts on the merits which it pronounced immediately

after it had concluded its deliberations. These decisions were final.

95.  The Government submit that the applicants had ample opportunity

to present their claims before the military court of appeal after they

had been acquitted but failed to do so. As a result, they cannot

complain of a violation of their right to a hearing under Article 6

para. 1 (Art. 6-1) of the Convention. Moreover, the court did not hear

the public prosecutor before deciding, proprio motu, not to grant the

applicants compensation. As a result, the principle of equality of arms

was not violated.

96.  The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention guarantees the right to a "hearing" in the determination of

one's civil rights. In accordance with the case-law of the Court,

although this right can be waived, waiver must be established in an

unequivocal manner. Moreover, the waiver of a procedural right, in

order to be effective, requires minimum guarantees commensurate to its

importance (Eur. Court H.R., Deweer judgment of 27 February 1980,

Series A no. 35, p. 25, para. 49, in conjunction with the Pfeifer and

Plankl judgment of 25 February 1992, Series A no. 227, pp. 16-17,

para. 37).

97.  It is not disputed that on 30 May 1991 and 29 May 1991 the

applicants were not heard in connection with their entitlement to

compensation. The issue which must, therefore, be determined is whether

the applicants waived their right to be heard, as the Government

contend.

98.  The Commission considers that the right to be heard in the

determination of one's civil rights is one of the most fundamental

rights under Article 6 para. 1 (Art. 6-1) of the Convention. The

requirements of the Convention concerning the guarantees which must

surround its waiver are, therefore, particularly demanding.

99.  The Commission notes that under Articles 536 para. 1 and 537

para. 2 of the Code of Criminal Procedure the applicants had the right

to apply for compensation within 48 hours from the pronouncement of the

verdict of the criminal court. On 30 May 1991 and 29 May 1991, however,

the Courts-Martial Appeal Court did not wait for the 48 hour period to

expire. It decided to pronounce proprio motu on the applicants' right

to compensation and joined its negative decisions on this matter to its

verdicts on the merits of the criminal proceedings against the

applicants. Under Article 436 para. 2 of the Code of Criminal Procedure

its decisions on the issue of compensation were final.

100. There can be no doubt that Article 536 para. 1 of the Code of

Criminal Procedure gave the military court of appeal the power to make

proprio motu such orders on the particular occasions. The Commission

considers, however, that Article 6 para. 1 (Art. 6-1) of the Convention

created, in the circumstances of the case, an obligation for the

military court to invite the applicants to express their views on the

compensation issue before exercising that power. The Commission

attaches particular importance in this connection to the legitimate

expectations of the applicants who had in principle the possibility

under national law to present their compensation claims within 48 hours

from the pronouncement of the courts' verdict. It also attaches

importance to the fact that it was clear from the start that the

applicants, being indisputably ministers of a known religion, would

have to be acquitted of the charges of insubordination.

101. Given that the military court of appeal did not invite the

applicants to express their views, the Commission cannot conclude that

it has been established in an unequivocal manner that the applicants

waived their right to be heard. It follows that on 30 May 1991 and

29 May 1991 the applicants were not given a hearing in the

determination of their civil rights in accordance with Article 6

para. 1 (Art. 6-1) of the Convention.

102. The applicants further submit that the military court of appeal

failed to provide adequate reasons for its decisions not to grant them

compensation.

103. The Government submit that the manner in which the decisions of

the military court of appeal were reasoned satisfied the requirements

of Article 6 para. 1 (Art. 6-1) of the Convention. As the applicants

had not submitted any claims for compensation, there were no arguments

to be refuted and there was, accordingly, no need for detailed reasons

to be given.

104. The Commission recalls that, in accordance with the case-law of

the Court, Article 6 para. 1 (Art. 6-1) of the Convention creates an

obligation for all courts to "indicate with sufficient clarity the

grounds on which they based their decision(s)" (Eur. Court H.R.,

Hadjianastassiou judgment of 16 December 1992, Series A no. 252, p. 16,

para. 33).

105. However, on 30 May 1991 and 29 May 1991 the Courts-Martial Appeal

Court reasoned its decisions not to grant the applicants compensation

by merely reproducing the wording of Article 535 para. 1 of the Code

of Criminal Procedure and did not in any way specify why "the

applicants' detention was due to their gross negligence". In this

connection the Commission notes that a reasoned decision on the issue

of compensation would have been all the more necessary, since it was

clear from the start that the applicants, being indisputably ministers

of a known religion, would have to be acquitted of the charges of

insubordination.

106. It follows that the manner in which the decisions of 30 May 1991

and 29 May 1991 of the Court-Martial Appeal Court were reasoned did not

comply with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.

     CONCLUSION

107. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

F.   As regards Article 13 (Art. 13) of the Convention

108. Article 13 (Art. 13) of the Convention provides the following:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by persons acting in an

     official capacity."

109. The applicants complain that, since the decisions of the military

court of appeal were final, they had no effective remedy under national

law for the violation of their rights under the Convention.

110. In view of its opinion concerning Article 6 (Art. 6) of the

Convention, the Commission does not consider it necessary also to

examine the case under Article 13 (Art. 13).

     CONCLUSION

111. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13)

of the Convention.

G.   As regards Article 14 (Art. 14) of the Convention in conjunction

     with Article 9 (Art. 9) of the Convention

112. The Commission notes that the applicants complain that, because

they were Jehovah's Witnesses, they had to spend considerable periods

of time in detention before obtaining exemption from military service.

It considers that these complaints should be examined under Article 14

(Art. 14) of the Convention  in conjunction with Article 9 (Art. 9).

113. Article 14 (Art. 14) of the Convention provides the following:

     "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."

     Article 9 (Art. 9) of the Convention provides the following:

     "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."

114. The applicants complain that they were discriminated against in

the enjoyment of their freedom of religion. Under Article 5 of Law

1763/1988 all ministers of known religions have the right to be

exempted from military service. However, while the ministers of the

Greek Orthodox Church are exempted from military service without

difficulty, the applicants were initially refused exemption, had to

appeal against the relevant administrative decisions before the Council

of State and were detained for thirteen and twelve months respectively

pending the outcome of the proceedings.

115. The Government argue that the applicants were not discriminated

against on the basis of their religious beliefs. Domestic law provides

for a number of grounds on the basis of which one may apply for

exemption from military service. Unsuccessful applicants who refuse to

enlist are always prosecuted.

116. According to the case-law of the Convention organs, Article 14

(Art. 14) of the Convention has no independent existence, but plays an

important role by supplementing the other provisions of the Convention

and the Protocols. Article 14 (Art. 14) safeguards individuals, placed

in similar situations, from discrimination in the enjoyment of the

rights set forth in those other provisions. A measure which as such

could be in conformity with the normative provision may nevertheless

violate that provision taken in conjunction with Article 14, (Art. 14)

if it is applied in a discriminatory manner. It is as if Article 14

(Art. 14) formed an integral part of each of the provisions laying down

the specific rights and freedoms. The Convention organs have

furthermore constantly held that a distinction is discriminatory if it

"has no objective and reasonable justification", that is, if it does

not pursue a "legitimate aim" or if there is not a "reasonable

relationship of proportionality between the means employed and the aim

sought to be realised" (see, inter alia, Eur. Court H.R., "Belgian

linguistic" judgment of 23 July 1968, Series A no. 6, pp. 33-34,

paras. 9-10).

117. The Commission recalls that the Convention does not guarantee per

se a right for religious ministers to be exempted from military service

(see, by implication, Grandrath v. Germany, Comm. Report 12.12.66,

Yearbook 10 p. 630). Greek law, nevertheless, provides for such an

exemption for ministers of "known religions". The aim of this exemption

is to enable these ministers to perform uninhibited their religious

functions. As a result, the subject matter of the applicant's complaint

falls within the scope of Article 9 (Art. 9) of the Convention.

118. Both applicants were indisputably Jehovah's Witnesses religious

ministers. Moreover, Jehovah's Witnesses enjoy in Greece the status of

a "known religion" (see Kokkinakis judgment, loc. cit.). The applicants

applied in due time to be exempted from military service. However, the

Recruitment Offices of Eastern Attica and Patras refused to exempt

them, on the ground that they were not ministers of a known religion.

The applicants appealed to the Director for Recruitment of the General

Headquarters of National Defence. However, while their appeals were

pending, they were ordered to enlist in the army. When the applicants

refused to do so, they were charged with insubordination. The Director

for Recruitment of the General Headquarters of National Defence

confirmed the decisions of the Recruitment Offices that the applicants

were liable to perform military service. The decision of the Director,

being the final administrative decision on the question, opened the way

for the applicants' appeals to the Council of State. The Council of

State examined the applicants' appeals within a reasonable time and

annulled the administrative decisions refusing the applicants'

exemption. In the meanwhile, however, the applicants had been convicted

by the first instance military courts of insubordination, although it

was clear that they could not have committed that offence because they

were ministers of a known religion. The applicants' convictions were

quashed on appeal immediately after the delivery of the decisions of

the Council of State. Nevertheless, the applicants had spent by then

thirteen and twelve months in detention respectively following their

first instance convictions.

119. The Commission notes that, although the applicants were

eventually exempted from military service, they were subjected to

lengthy periods of detention because the military authorities and first

instance military courts refused, inter alia, to recognise that

Jehovah's Witnesses were a known religion. The Government do not

contest the applicants' claim that the ministers of the Orthodox Church

obtain exemption without any difficulty. Moreover, they do not invoke

any reasonable or objective justification for this difference in

treatment. As a result, the Commission considers that the applicants

were discriminated against in the enjoyment of their right under

Article 9 (Art. 9) of the Convention because of their religious beliefs

contrary to Article 14  (Art. 14) of the Convention.

     CONCLUSION

120. The Commission concludes, by 26 votes to 2, that there has been

a violation of Article 14 (Art. 14) in conjunction with Article 9

(Art. 9) of the Convention.

H.   As regards Article 9 (Art. 9) of the Convention

121. Article 9 (Art. 9) of the Convention provides the following:

     "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."

122. The applicants complain that they were persecuted because of

their religious beliefs and that they were deprived, during their

detention, of every opportunity to perform their duties as religious

ministers and practise their religion together with the other followers

of their creed.

123. The Government submit that Article 9 (Art. 9) of the Convention

does not require States to exempt religious ministers from military

service. The applicants were imprisoned because they had refused to

obey, while in the army, a superior's order. Their religious beliefs

were irrelevant for their convictions.

124. In view of its opinion concerning Article 14 (Art. 14) in

conjunction with Article 9 (Art. 9) of the Convention, the Commission

does not consider it necessary also to examine the case under Article 9

(Art. 9) on its own.

     CONCLUSION

125. The Commission concludes, by 24 votes to 4, that it is not

necessary to examine whether there has been a violation of Article 9

(Art. 9) of the Convention.

I.   As regards Article 3 (Art. 3) of the Convention

126. Article 3 (Art. 3) of the Convention provides as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

127. The applicants complain that they were subjected to treatment

prohibited under Article 3 (Art. 3) of the Convention as a result of

the refusal of the military authorities to recognise them as ministers

of a known religion and their detention following the decision of the

first instance military courts.

128. The Government submit that it could not be argued that the

applicants were submitted to treatment contrary to Article 3 (Art. 3)

of the Convention, given the requirements of this provision as to the

level of severity.

129. The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3) of the Convention (Eur. Court H.R., Ireland v. the United

Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,

para. 162). It considers that this level of severity was not attained

in the applicants' case. As a result, Article 3 (Art. 3) of the

Convention was not violated.

     CONCLUSION

130. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention.

J.   Recapitulation

131. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 78).

132. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 83).

133. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para.

107).

134. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 13 (Art. 13)

of the Convention (para. 111).

135. The Commission concludes, by 26 votes to 2, that there has been

a violation of Article 14 (Art. 14) in conjunction with Article 9

(Art. 9) of the Convention (para. 120).

136. The Commission concludes, by 24 votes to 4, that it is not

necessary to examine whether there has been a violation of Article 9

(Art. 9) of the Convention (para. 125).

137. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention (para. 130).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)

                                                 (Or. English)

        SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL,

  JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI

     I agree with the majority that there has been a violation of

Article 5 para. 1 of the Convention in the present case. However, to

arrive at this conclusion I prefer another reasoning.

     In fact, I strongly hesitate to find a violation of Article 5

para. 1 on the basis of the argument that a conviction was

substantially wrong and therefore the execution of the sentence which

consists in a deprivation of liberty cannot be justified under

Article 5 para. 1 (a) (would a pecuniary sentence constitute a

violation of Article 1 of Protocol No. 1 ?). This is what the majority

says in para. 77: "... it has been established that the applicants'

conviction ... has clearly no basis in domestic law. As a result, the

detention of the applicant[s] ... cannot be considered to be 'lawful'

within the meaning of Article 5 para. 1 (a) of the Convention".

     As a consequence, this would imply that the merits of a sentence

(e.g. under Article 7) could be examined by way of an application

concerning the prison sentence. Thereby, both rules of exhaustion of

domestic remedies and the six-months' time-limit could be circumvented.

I would also like to refer to Article 3 of Protocol No. 7 which grants

a right to compensation only in case a "final decision" was quashed

after the person concerned has served (part of) a sentence. In effect,

the reasoning of the majority leads to a right to compensation also if

a prior judgment has been reversed on appeal, which was not at all the

intention when Protocol No. 7 was drafted.

     I cannot help but refer to an opinion which I have stubbornly

upheld since a very long time and last expressed in my dissenting

opinion in B v. Austria (Eur. Court H.R., judgment of 28 March 1990,

Series A no. 175, p. 29s.): detention after conviction in first

instance is to be regarded as detention on remand within the meaning

of Article 5 para. 1 (c) as long as the domestic law gives suspensive

effect to the appeal.

     There can be no reasonable doubt that this was the case for the

applicant's detention after conviction in the present case. Para. 47

of the Report relates that "[t]he Public Prosecutor ... proposed that

the applicants' provisional detention should be continued" (emphasis

added).

     Starting from this point of view, it is uncontestable that no

reasonable suspicion of having committed an offence could be held

against the applicants in view of the case-law of the Council of State.

This, in my view, is the reasoning which leads to the finding of a

violation of Article 5 para. 1 in the present case.

                                                 (Or. English)

        PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

     I agree that there has been a violation of Article 14 in

conjunction with Article 9 of the Convention, but unlike the majority

consider that it is necessary to examine the case under Article 9 taken

by itself.

     A separate issue arises because if the applicants had undertaken

military service they would have been acting contrary to a fundamental

tenet of their religion. The alternative for them was to refuse to

enlist and risk prosecution and detention, thus depriving them of the

opportunity to manifest their religion in community with others and in

public, in worship, teaching, practice and observance. In their dilemma

they opted for the latter course and were, in the event, subjected to

lengthy periods of detention. It may be assumed that this course of

action represented, to them, a lesser evil than performing military

service.

     I consider that, by analogy with the Young, James and Webster

Case (Series A, Vol. 44) such a form of compulsion, in the

circumstances of the case, strikes at the very substance of the freedom

guaranteed. The freedom in this case is the freedom to manifest the

well-known religious conviction of Jehovah's Witnesses by refraining

from personal military service. 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 12.10.78,

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 (Application No. 10358/83, D.R. 37 p. 142). There has

accordingly been an interference with the right guaranteed by

Article 9 para. 1.

     Given the particular status of the applicants as ministers of a

known religion, and the Commission's finding of unlawfulness under

Article 5 para. 1, it cannot be said that the interference was

"prescribed by law" for the purpose of Article 9 para. 2. This makes

it unnecessary to consider whether it was "necessary in a democratic

society" for one of the aims mentioned in that provision.

     This conclusion is not affected by the fact that Article 4

para. 3 (b) of the Convention specifies that "any service of a military

character, or, in case of conscientious objectors in countries where

they are recognised, service exacted instead of compulsory military

service" is not included in the concept of forced or compulsory labour.

It is true that in the Grandrath Case (Comm. Report, 12.12.66) the

Commission concluded that this express reference meant that objections

of conscience do not, under the Convention, entitle a person to

exemption from such service. However, as pointed out by

Mr. Eusthadiades in his concurring opinion, this does not mean that

Article 9 is inapplicable, but rather that the necessity for compulsory

military or alternative service falls to be considered under

paragraph 2 of Article 9, and that the margin of appreciation is

extended as a result of Article 4 para. 3 (b).

     The approach of Mr. Eusthadiades is in my view more consistent

with the structure of the Convention. First, the savers in Article 4

are for the purposes of the right specifically guaranteed by Article 4.

Second, the Convention does not purport to recognise that States may

arbitrarily impose compulsory military service or alternative service.

The Court has found a violation of Article 14 in conjunction with

Article 4 para. 3 (d) where a financial burden ensuing from provision

for compulsory service in the fire-brigade involved a difference of

treatment on the ground of sex (Schmidt v. Germany, Judgment of

18 July 1994, Series A, Vol. 291). Third, the Commission in the above-

mentioned case had been of the opinion that there had also been a

violation of Article 14 in conjunction with Article 1 of

Protocol No. 1. In the event, the Court did not find it necessary to

examine the complaint. This represents a significant evolution of the

law since the Grandrath Case: neither the Commission nor the Court

adopted the view that the saver in Article 4 para. 3 (b) had the effect

of rendering Article 1 of Protocol No. 1 inapplicable. Fourth, the

formulation of Article 4 para. 3 (b) ("any" service of a military

character, "in case of conscientious objectors in countries where they

are recognised") makes it clear that the framers of the Convention did

not assume that every country had a need for compulsory military

service, but allowed (without prejudging any issue under other

provisions of the Convention) for the fact that not every country gave

recognition to conscientious objectors. Finally, Article 9 contains no

express saver for compulsory military or alternative service in its

first paragraph, notwithstanding the recognition in Article 4

para. 3 (b) that questions of conscience could arise concerning

military service, and notwithstanding the deliberate insertion of a

third "saving" sentence in the first paragraph of Article 10.

     For these reasons, I voted for a finding of a violation of

Article 9 taken by itself.

                                                 (Or. English)

         PARTIALLY DISSENTING OPINION OF MR. G. RESS

     In this case I have voted for a violation of Article 9 alone

since, in my view, the complaints raised by the applicants are not

wholly dealt with in the context of discrimination. A conclusion of no

separate issue arises when the complaint in question is covered by a

finding of a violation of another provision, or a combination of other

provisions, of the Convention. Where the interference in religious

freedom essentially results from discrimination, a finding of a

violation of Article 14 in conjunction with Article 9 is sufficient.

In the present case, discrimination has been established. However, not

every infringement of the right of religion, or of the other rights

contained in the Convention, can be characterised as consisting only

of discrimination: such an interpretation would impose a subsidiary and

negligible role on the other rights guaranteed under the Convention.

Where, as in this application, the infringement is of a grave nature

and specifically directed against the exercice of a right by a

particular applicant, issues must be acknowledged as arising in

addition to a finding of a violation of Article 14. Consequently, since

it appears that in this case the ministers ot the Jehovah's Witnesses

are the specific target ot the military authorities, there is a further

and separate violation of Article 9.

 

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