In the case of Tsirlis and Kouloumpas v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges: Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr N. Valticos,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr D. Gotchev,
Mr P. Kuris,
Mr U. Lohmus,and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 January and 25 April 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 54/1996/673/859-860. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
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PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 17 April 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in applications
(nos. 19233/91 and 19234/91) against the Hellenic Republic lodged with
the Commission under Article 25 (art. 25) by two Greek nationals,
Mr Dimitrios Tsirlis and Mr Timotheos Kouloumpas, on 26 November 1991. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 3, 5, 6, 9, 13 and 14 of the Convention
(art. 3, art. 5, art. 6, art. 9, art. 13, art. 14).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would
represent them (Rule 30).
3. On 27 April 1996, the President of the Court decided, under
Rule 21 para. 7 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider this
case and that of Georgiadis v. Greece (no. 56/1996/675/865). The
Chamber to be constituted for that purpose included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On the same date, in the presence of the
Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr R. Pekkanen, Mr A.N. Loizou,
Mr A.B. Baka, Mr D. Gotchev, Mr P. Kuris and Mr U. Lohmus (Article 43
in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Greek Government
("the Government"), the applicants' lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1
and 38). Pursuant to the order made in consequence, the Registrar
received the Government's memorial on 25 October 1996 and the
applicants' claims for just satisfaction on 31 October 1996.5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 January 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Counsel;(b) for the Commission
Mr P. Lorenzen, Delegate;
(c) for the applicants
Mr P. Bitsaxis, of the Athens Bar, Counsel.
The Court heard addresses by Mr Lorenzen, Mr Bitsaxis and
Mrs Grigoriou and also replies to its questions.
AS TO THE FACTS
I. The circumstances of the case
6. The applicants were born in 1964 and live in Thiva, Beotia.
A. The case of Mr Tsirlis
7. On 4 November 1987 Mr Tsirlis was appointed religious minister
by the Central Congregation of the Christian Jehovah's Witnesses of
Greece. He was given authority, inter alia, to perform wedding
ceremonies between persons of that faith 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 his appointment.
8. On 13 February 1990 the applicant lodged an application with the
Recruitment Office of Eastern Attica ("the Recruitment Office") to be
exempted from military service in accordance with section 6 of
Law no. 1763/1988 ("the 1988 Law"), which grants such a right to all
ministers of "known religions". On 28 February 1990 the
Recruitment Office rejected the application on the ground that
Jehovah's Witnesses were not a "known religion". The applicant
immediately lodged an appeal with the Director for Recruitment at the
General Headquarters for National Defence ("the Director for
Recruitment").9. While that appeal was pending, the applicant was ordered by the
Recruitment Office to report for duty at a military training centre in
Rethymnon on 6 March 1990. The applicant presented himself at the
Rethymnon centre, as ordered, but refused to join his unit, invoking
his status as a minister of a "known religion". He also refused to
wear a military uniform as ordered by a military officer. He was
arrested, charged with insubordination (see paragraph 45 below) and
detained pending trial.
10. On 22 March 1990 the Director for Recruitment rejected the
applicant's appeal against the Recruitment Office's decision, on the
ground that Jehovah's Witnesses were not a "known religion".
11. On 30 April 1990 the Canea Permanent Army Tribunal
(Diarkes Stratodikio), composed of two military judges and
three ordinary military officers, examined the criminal charges against
the applicant. Mr Tsirlis 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
tribunal 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, namely
collecting articles of clothing necessary for his training as an
unarmed soldier, on the ground that the religious convictions of
Jehovah's Witnesses did not permit him to do so?" The tribunal 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 he had spent in detention pending trial.
12. On 4 May 1990 the applicant appealed against that decision to the
Military Appeal Court (Anatheoritiko Dikastirio).
13. On 21 May 1990 the applicant brought proceedings in the
Supreme Administrative Court (Symvoulio tis Epikratias) to have the
Director for Recruitment's decision of 22 March 1990 quashed. He
asked, among other things, to be treated like other
religious ministers.
14. On 19 June 1990 the applicant's appeal came up for hearing before
the Military Appeal Court, a court composed of five military judges.
The defence sought the applicant's acquittal or, alternatively, an
adjournment of the hearing pending the Supreme Administrative Court's
decision on his administrative appeal. The defence also applied for
the applicant's provisional release. The military court decided to
adjourn the hearing to a date to be fixed by the prosecutor
(Epitropos), in order to enable the latter to produce a copy of the
applicant's original application for an exemption and of the
Director for Recruitment's final decision on it. It further ruled that
the applicant should not be provisionally released.
15. On 12 September 1990 the applicant requested the
Supreme Administrative Court to order a stay of execution of the
Director for Recruitment's decision refusing to exempt him from
military service.
16. On 29 November 1990 the applicant's appeal came up again for
hearing before the Military Appeal Court. In the meantime the
Fourth Division of the Supreme Administrative Court had delivered
judgment no. 3601/90, in which the right of
Jehovah's Witnesses ministers of religion to be exempted from
military service had been expressly upheld (see paragraph 44 below).
The prosecutor requested an adjournment of the hearing with a view to
obtaining the opinion of the Director for Recruitment on the following
matter:
"Is the accused under an obligation to perform military service
in the light of judgment no. 3601/90 of the Fourth Division of
the Supreme Administrative Court, which quashed a decision of the
Director for Recruitment at the General Headquarters for
National Defence, who 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 ...?"17. The prosecutor further submitted that the applicant should remain
in custody. The defence agreed to the hearing being adjourned and
considered that the question of the applicant's provisional release
"should be left to the court's discretion". The court granted the
prosecution's application and ordered that the applicant should not be
provisionally released.
18. On 16 April 1991 the applicant's appeal came up for hearing for
the third time before the Military Appeal Court. A hearing had been
fixed on the same day in the action the applicant had brought in the
Supreme Administrative Court to have the Director for Recruitment's
decision of 22 March 1990 quashed.
19. The prosecutor at the Military Appeal Court proposed adjourning
the hearing of the applicant's criminal appeal pending the
Supreme Administrative Court's decision. He also submitted that the
applicant should remain in custody. The defence considered that the
first matter should be left to the court's discretion but made an
application for the applicant's provisional release.
20. The court decided to adjourn the hearing in order to obtain the
opinion of the Director for Recruitment on the following question: "Was
the accused exempted from the obligation to report for duty in the
light of his purported status of religious minister?" It further
ordered that the applicant should remain in custody.
21. On 24 April 1991 the Supreme Administrative Court quashed the
Director for Recruitment's decision of 22 March 1990 on the ground that
Jehovah's Witnesses were a "known religion" and the
administrative authorities had not challenged the evidence produced by
the applicant that he was a minister of that religion.
22. On 8 May 1991 a three-member committee of the
Supreme Administrative Court decided that in the circumstances there
was no need to rule on the applicant's petition for a stay of execution
of the Director for Recruitment's decision.
23. On 30 May 1991 the Military Appeal Court considered the
applicant's appeal against the Canea Permanent Army Tribunal's judgment
of 30 April 1990. 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, namely collecting articles of clothing
necessary for his training as an unarmed soldier, on the ground
that the religious convictions of Jehovah's Witnesses did not
permit him to do so?"24. Having heard the evidence and the parties' submissions 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" of insubordination. The dissenting
judges considered that "the accused [was] not a religious minister".
The following order was attached to the court's verdict and read out
together with it: "The State is under no obligation to compensate the
applicant for his detention between 6 March 1990 and 30 May 1991,
because his detention was due to his own gross negligence."
25. The applicant was immediately released and was provisionally
discharged from the armed forces on the basis that he was a minister
of religion.
B. The case of Mr Kouloumpas
26. On 4 November 1987 Mr Kouloumpas was appointed religious minister
by the Central Congregation of the Christian Jehovah's Witnesses of
Greece. He was given authority, inter alia, to perform wedding
ceremonies between persons of that faith 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 his appointment.
27. On 29 November 1989 the applicant lodged an application with the
Patras Recruitment Office ("the Recruitment Office") to be exempted
from military service in accordance with section 6 of the 1988 Law.
On 1 March 1990 the Recruitment Office rejected the application on the
ground that Jehovah's Witnesses were not a "known religion". The
applicant immediately lodged an appeal with the
Director for Recruitment.28. While that appeal was pending, the applicant was ordered by the
Recruitment Office 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 join his unit, invoking his
status as a minister of a "known religion". He also refused to wear
a military uniform as ordered by a military officer. He was arrested,
charged with insubordination (see paragraph 45 below) and detained
pending trial.
29. On 6 April 1990 the Director for Recruitment rejected the
applicant's appeal against the Recruitment Office's decision, on the
ground that Jehovah's Witnesses were not a "known religion".
30. On 21 May 1990 the applicant brought proceedings in the
Supreme Administrative Court to have the Director for Recruitment's
decision of 6 April 1990 quashed. He asked, among other things, to be
treated like other religious ministers.
31. On 30 May 1990 the Athens Permanent Army Tribunal, composed of
one military judge and four ordinary military officers, examined the
criminal charges against the applicant. Mr Kouloumpas 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 tribunal 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, namely
collecting articles of clothing necessary for his training as an
unarmed soldier, on the ground that the religious convictions of
Jehovah's Witnesses did not permit him to do so?" The tribunal 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 he had spent in detention pending trial.
32. On 1 June 1990 the applicant appealed against that decision to
the Military Appeal Court.
33. On 12 July 1990 the applicant's appeal came up for hearing before
the Military Appeal Court. The defence sought the applicant's
acquittal or, alternatively, an adjournment of the hearing pending the
Supreme Administrative Court's decision on his administrative appeal.
The court decided to adjourn the hearing to a date to be fixed by the
prosecutor, in order to enable the latter to produce copies of certain
documents from the Ministry of Education and the Holy Synod of the
Orthodox Church of Greece which had been relied on by the
military authorities to refuse the applicant's application for
exemption. The court further accepted the submission of both the
prosecution and the defence that the applicant should not be
provisionally released.
34. On 12 September 1990 the applicant requested the
Supreme Administrative Court to order a stay of execution of the
Director for Recruitment's decision refusing to exempt him from
military service.
35. On 27 November 1990 the applicant's appeal came up again for
hearing before the Military Appeal Court. In the meantime the
Fourth Division of the Supreme Administrative Court had delivered
judgment no. 3601/90, in which the right of
Jehovah's Witnesses ministers of religion to be exempted from
military service had been expressly upheld (see paragraph 44 below).
The prosecutor requested an adjournment of the hearing with a view to
obtaining the opinion of the Director for Recruitment on the following
matter:
"Is the accused under an obligation to perform military service
in the light of judgment no. 3601/90 of the Fourth Division of
the Supreme Administrative Court, which quashed a decision of the
Director for Recruitment at the General Headquarters for
National Defence, who 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 ...?"36. The prosecutor further submitted that the applicant should remain
in custody. The defence requested the applicant's provisional release.
The court granted the prosecution's application and ordered that the
applicant should not be provisionally released.
37. On 7 March 1991 the applicant's appeal came up for hearing for
the third time before the Military Appeal Court. The prosecutor sought
an adjournment of the hearing on the ground that the Director for
Recruitment should give his opinion on the following matter: "Is the
accused already exempted from the obligation to perform
military service in view of the proceedings he has brought in the
Supreme Administrative Court?" He also submitted that the applicant
should remain in custody. Despite the applicant's opposition, the
court granted both applications.
38. On 24 April 1991 the Supreme Administrative Court quashed the
Director for Recruitment's decision refusing the applicant's
application for exemption on the ground that Jehovah's Witnesses were
a "known religion" and the administrative authorities had not
challenged the evidence produced by the applicant that he was a
minister of that religion.
39. On 8 May 1991 a three-member committee of the
Supreme Administrative Court decided that in the circumstances there
was no need to rule on the applicant's petition for a stay of execution
of the Director for Recruitment's decision.
40. On 29 May 1991 the Military Appeal Court considered the
applicant's appeal against the Athens Permanent Army Tribunal's
judgment of 30 May 1990. 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, that is to collects articles of
clothing necessary for his training as an unarmed soldier, on the
ground that the religious convictions of Jehovah's Witnesses did
not permit him to do so?"41. Having heard the evidence and the parties' submissions 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" of insubordination. The dissenting
judges considered that "the accused [was] not a religious minister".
The following order was attached to the tribunal's verdict and read out
together with it: "The State is under no obligation to compensate the
applicant for his detention between 6 March 1990 and 29 May 1991,
because his detention was due to his own gross negligence."
42. The applicant was immediately released and was provisionally
discharged from the armed forces on the basis that he was a minister
of religion.
II. Relevant domestic law and practice
A. Law no. 1763/1988
43. Section 6 of Law no. 1763/1988 ("the 1988 Law") exempts all
ministers of "known religions" from military service. In application
of this provision, priests of the Greek Orthodox Church obtain
exemption without any difficulty.44. The Supreme Administrative Court has repeatedly held that
Jehovah's Witnesses are a "known religion" (judgments nos. 2105 and
2106/1975, 4635/1977, 2484/1980, 4620/1985 and 790 and 3533/1986). In
its judgment no. 3601/1990 the Supreme Administrative Court expressly
upheld the right of Jehovah's Witnesses ministers of religion to be
exempted from military service.
B. The Military Criminal Code
45. Article 70 of the Military Criminal Code provides as follows:
"A member of the armed forces who refuses ... to obey an order
by his superior to perform one of his duties is punished..."46. On 16 March 1992 the Athens Permanent Army Tribunal held that a
Jehovah's Witnesses minister of religion who had refused to collect
military clothing when first called upon to join the army was not
guilty of insubordination. The tribunal considered that there had been
no act of insubordination, because the accused had no obligation to
perform military service as he was a minister of a "known religion".
47. Article 434 provides that where a procedural matter is not
regulated in the Military Criminal Code, the Code of Criminal Procedure
applies.
C. The Code of Criminal Procedure
48. The relevant provisions of the Code of Criminal Procedure read
as follows:
Article 533 para. 2
"Persons who have been detained on remand and subsequently
acquitted ... shall be entitled to request compensation ... if
it has been established in the proceedings that they did not
commit the criminal offence for which they were detained ..." Article 535 para. 1
"The State shall have no obligation to compensate a person who
... has been detained on remand if, whether intentionally or by
gross negligence, he was responsible for his own detention." Article 536
"1. Upon an oral application by a person who has been acquitted,
the court which heard the case shall rule on the State's
obligation to pay compensation in a separate decision delivered
at the same time as the verdict. However, the court may also
make such a ruling proprio motu ... 2. The ruling on the State's obligation to pay compensation
cannot be challenged separately; it shall, however, be quashed
if the decision on the principal issue of the criminal trial is
reversed." Article 537
"1. A person who has suffered loss may seek compensation at a
later stage from the same court. 2. In those circumstances the application must be submitted to
the prosecutor [Epitropos] at that court no later than
forty-eight hours after the delivery of the judgment in
open court." Article 539 para. 1
"Where it has been decided that the State must pay compensation,
the person entitled thereto may bring his claim in the
civil courts, which shall not call in question the existence of
the State's obligation." Article 540 para. 1
"Persons who have been unfairly ... detained on remand must be
compensated for any pecuniary loss they have suffered as a result
of their ... detention. They must also be compensated for
non-pecuniary loss ..."PROCEEDINGS BEFORE THE COMMISSION
49. Mr Tsirlis and Mr Kouloumpas applied to the Commission on
26 November 1991. Relying on Articles 3, 5 paras. 1 and 5, 6 para. 1,
9, 13 and 14 of the Convention (art. 3, art. 5-1, art. 5-5, art. 6-1,
art. 9, art. 13, art. 14), they complained that their detention was
unlawful and amounted to discrimination on account of their religious
beliefs, that they had been subjected to inhuman and degrading
treatment, and that they did not have a fair hearing in the matter of
compensation for their unlawful detention. They further complained
under Article 7 (art. 7) that their conviction had been arbitrary.
50. On 4 September 1995 the Commission declared the applications
(nos. 19233/91 and 19234/91) admissible with the exception of the
complaints concerning the lawfulness of the applicants' pre-trial
detention and the complaint under Article 7 (art. 7). In its report
of 7 March 1996 (Article 31) (art. 31), the Commission expressed the
opinion that:
(a) there had been a violation of Article 5 para. 1 (art. 5-1)
(unanimously);
(b) there had been a violation of Article 5 para. 5 (art. 5-5)
(unanimously);
(c) there had been a violation of Article 6 para. 1 (art. 6-1)
(unanimously);
(d) it was not necessary to examine whether there had been a
violation of Article 13 (art. 13) (unanimously);
(e) there had been a violation of Article 14 read in conjunction
with Article 9 (art. 14+9) (twenty-six votes to two);
(f) it was not necessary to examine whether there had been a
violation of Article 9 (art. 9) (twenty-four votes to four);
(g) there had been no violation of Article 3 (art. 3)
(unanimously).
The full text of the Commission's opinion and of the
three separate opinions contained in the report is reproduced as an
annex to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-III), but a copy of the Commission's report is
obtainable from the registry.
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FINAL SUBMISSIONS TO THE COURT
51. At the hearing, the applicants requested the Court to find that,
in their cases, Articles 3, 5 paras. 1 and 5, 6 para. 1, 9, 13 and 14
(art. 3, art. 5-1, art. 5-5, art. 6-1, art. 9, art. 13, art. 14) had
been violated.
The Government, for their part, asked the Court to reject every
allegation of a violation of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION (art. 5)
A. Paragraph 1 (art. 5-1)
52. Mr Tsirlis and Mr Kouloumpas complained that their detention
following conviction and up to their final acquittal by the
Military Appeal Court was in breach of Article 5 para. 1 of the
Convention (art. 5-1), which, in so far as relevant, reads:
"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; ..."
Mr Tsirlis complained that his detention between 30 April 1990
and 30 May 1991 was not "lawful" within the meaning of this provision
(art. 5-1). Mr Kouloumpas made the same complaint in respect of the
period spent in detention between 30 May 1990 and 29 May 1991. In
their allegation, the applicable provisions of the 1988 Law were clear:
all ministers of known religions had the right to be exempted from
military service (see paragraph 43 above). Mr Tsirlis and
Mr Kouloumpas had requested exemption on 13 February 1990 and
29 November 1989 respectively. In the light of the existing case-law
of the Supreme Administrative Court, which recognised
Jehovah's Witnesses as a "known religion" (see paragraph 44 above), and
since their status as ministers of that religion was never questioned
throughout the proceedings, it was undisputable that the applicants
were not liable to military service. In these circumstances, their
convictions on charges of insubordination by the permanent army
tribunals of Canea and Athens were considered by the applicants to be
"openly arbitrary".
The applicants further sought to describe the measures taken
against them as a part of a more general move by the Greek authorities
not to recognise the existence of a religious minority.
53. The Commission noted that the question of the applicants'
liability to military service was central to the issue of their
criminal responsibility for insubordination. It concluded that, in
ignoring the applicants' appointment as ministers of the
Jehovah's Witnesses and the relevant case-law of the
Supreme Administrative Court, the first-instance military tribunals
clearly misconstrued section 6 of the 1988 Law, which exempts all
ministers of "known religions" from military service. The applicants'
detention following conviction could not therefore be regarded as
"lawful" within the meaning of Article 5 para. 1 of the Convention
(art. 5-1).
54. In the Government's submission, no breach of Article 5 para. 1
(art. 5-1) had taken place. The applicants were detained following
conviction by the competent military courts on charges of
insubordination. Insubordination is committed when a member of the
armed forces refuses to comply with orders given by a serviceman of a
higher rank. At the material time the applicants were members of the
armed forces. By refusing to obey their superior's order to wear a
military uniform, Mr Tsirlis and Mr Kouloumpas therefore committed a
criminal offence. This was the only issue before the
military jurisdictions. Neither the military units to which the
applicants reported, nor the military courts had the power to set aside
the administrative decision declining to exempt the applicants from
military service. At any event, the applicants had refused to obey on
the ground that they were Jehovah's Witnesses, not religious ministers,
as borne out by the legal issue formulated by the presidents of the
military tribunals (see paragraphs 11, 23, 31 and 40 above).
It was further contended that the military authorities were
hesitant to follow the Supreme Administrative Court's decision
acknowledging that ministers of the Jehovah's Witnesses were to be
considered as "ministers of a known religion" and thus exempted from
military obligations (judgment no. 3601/90 - see paragraph 44 above),
on the ground that one single decision did not constitute established
case-law. Such hesitancy was further reflected in the dissenting
opinions attached to the decisions rendered by the
Supreme Administrative Court in the applicants' cases.
55. Those appearing before the Court agreed that Mr Tsirlis's and
Mr Kouloumpas's detention fell properly to be classified as detention
"after conviction by a competent court" and its lawfulness to be
examined under sub-paragraph (a) of Article 5 para. 1 (art. 5-1-a); the
Court sees no reason to adopt a different view.
56. It must therefore be established whether Mr Tsirlis's detention
between 30 April 1990 and 30 May 1991 as well as Mr Kouloumpas's
detention between 30 May 1990 and 29 May 1991 were "in accordance with
a procedure prescribed by law" and "lawful" within the meaning of
Article 5 para. 1 of the Convention (art. 5-1). The Court reiterates
that the Convention here essentially refers back to domestic law and
states the obligation to conform to the substantive and procedural
rules thereof; but it requires in addition that any deprivation of
liberty should be consistent with the purpose of Article 5 (art. 5),
namely to protect individuals from arbitrariness (see, among many other
authorities, the Bozano v. France judgment of 18 December 1986,
Series A no. 111, p. 23, para. 54, and the Lukanov v. Bulgaria judgment
of 20 March 1997, Reports of Judgments and Decisions 1997-II,
pp. 543-44, para. 41).
57. It is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law. However, since under
Article 5 para. 1 (art. 5-1) failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see the Bouamar v. Belgium judgment of 29 February 1988,
Series A no. 129, p. 21, para. 49).
58. Detention will in principle be lawful if it is carried out
pursuant to a court order. A subsequent finding that the court erred
under domestic law in making the order will not necessarily
retrospectively affect the validity of the intervening period of
detention. For this reason, the Strasbourg organs have consistently
refused to uphold applications from persons convicted of
criminal offences who complain that their convictions or sentences were
found by the appellate courts to have been based on errors of fact or
law (see the Benham v. the United Kingdom judgment of 10 June 1996,
Reports 1996-III, p. 753, para. 42).
59. The Court notes that section 6 of the 1988 Law refers to
ministers of all "known religions". As early as 1975, the
Supreme Administrative Court acknowledged that the Jehovah's Witnesses
were to be considered as such, and this case-law could unquestionably
be regarded as established by 1990 (see paragraph 44 above). It was
not disputed throughout the domestic proceedings that the applicants
were ministers of that religion. However, in deciding on the issue of
the applicants' criminal liability, and thus on the lawfulness of their
detention, the military authorities blatantly ignored this case-law.
As a result, Mr Tsirlis and Mr Kouloumpas spent thirteen and
twelve months in detention respectively.
60. Furthermore, the relevant authorities' persistence not to
recognise Jehovah's Witnesses as a "known religion" and the disregard
of the applicants' right to liberty that followed, were of a
discriminatory nature when contrasted with the way in which ministers
of the Greek Orthodox Church obtain exemption (see paragraph 43 above).
61. It is no answer to these failings that, as the Government have
submitted, the question of the applicants' position as ministers of
religion lay outside the scope of the case before the military courts,
whose jurisdiction only extended itself to the alleged offence of
insubordination (see paragraph 54 above). In the first place, it is
clear from the repeated adjournments of the applicants' cases by the
Military Appeal Court in order to clarify whether
Jehovah's Witnesses ministers were under an obligation to perform
military service (see paragraphs 16, 20, 35 and 37 above) that this
latter issue was of central importance to the appeals. In the
second place, the appellate courts acquitted the applicants immediately
after the Supreme Administrative Court had quashed the
Director for Recruitment's decision not to grant exemption from
military duties on the grounds that the applicants were ministers of
a "known religion".
62. Against this background, the Court finds that the applicants'
detention following their conviction on charges of insubordination had
no basis under domestic law and was arbitrary. It cannot accordingly
be considered to have been "lawful" for the purposes of Article 5
para. 1 (art. 5-1).
63. In conclusion, there has been a violation of Article 5 para. 1
of the Convention (art. 5-1).
B. Paragraph 5 (art. 5-5)
64. The applicants further complained that despite their unlawful
detention, they were not awarded any compensation. They invoked
Article 5 para. 5 (art. 5-5), which reads:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article (art. 5) shall
have an enforceable right to compensation." The Commission agreed with the applicants.
65. The Government submitted that since the applicants' detention was
lawful (see paragraph 54 above), no question of a breach of Article 5
para. 5 (art. 5-5) could arise.
66. The Court recalls its finding that the applicants' detention
following conviction on charges of insubordination was unlawful for the
purposes of paragraph 1 of Article 5 of the Convention (art. 5-1)
(see paragraph 62 above). However, on 30 May 1991 and 29 May 1991
respectively the Military Appeal Court found that Mr Tsirlis and
Mr Kouloumpas were not entitled under Greek law to any compensation on
the ground that their detention had been due to their own "gross
negligence" (see paragraphs 24 and 41 above). In the absence of any
enforceable claim for compensation before the domestic authorities, it
follows that paragraph 5 (art. 5-5) has also been breached (see, for
example, the Fox, Campbell and Hartley v. the United Kingdom judgment
of 30 August 1990, Series A no. 182, p. 21, para. 46).
II. ALLEGED VIOLATIONS OF ARTICLE 9 OF THE CONVENTION, TAKEN ALONE
AND IN CONJUNCTION WITH ARTICLE 14 (art. 9, art. 14+9)67. The applicants further complained that they had to spend lengthy
periods in detention before obtaining exemption from military service
exclusively on account of their being members of the religious minority
of the Jehovah's Witnesses. In their submission, these complaints
raised issues under Article 9 of the Convention, both taken alone
(art. 9) and in conjunction with Article 14 (art. 14+9). These
provisions (art. 9, art. 14) read as follows:
Article 9 (art. 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 (art. 14)
"The enjoyment of the rights and freedoms set forth in [the]
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."68. In respect of their complaint under Article 9 (art. 9), the
applicants contended that during the time spent in detention they had
been deprived of their right to exercise their duties as religious
ministers.
Under Article 9 read in conjunction with Article 14 of the
Convention (art. 14+9), the applicants, with whom the Commission
agreed, further alleged that under section 6 of the 1988 Law all
ministers of known religions have the right to be exempted from
military service. However, while the ministers of the dominant
Greek Orthodox Church obtain exemption without difficulty, they were
detained for thirteen and twelve months respectively pending the
outcome of the administrative proceedings.
69. By way of preliminary objections, the Government maintained that
the applicants' complaints under this head were introduced well after
the six-month period set out in Article 26 of the Convention (art. 26)
and that the relevant Convention provisions were never invoked in the
domestic proceedings.
As to the merits, they submitted that no provision in the
Convention requires a Contracting Party to grant exemption from
military service on grounds of religious conscience. In any event, the
Convention's system of control being by virtue of Article 26 (art. 26)
of a subsidiary nature, no violation of its provisions can be found
where redress has been obtained from the national authorities. The
requirements of the Convention were therefore fulfilled with the final
decisions of the Supreme Administrative Court.
70. The Court observes that at the centre of the present complaints
lies the issue of the applicants' detention pending the
administrative decision on their applications for exemption. Having
found that the applicants' detention was arbitrary and hence unlawful
for the purposes of Article 5 para. 1 of the Convention (art. 5-1)
(see paragraphs 60 and 62 above), the Court does not consider it
necessary to examine the same facts also from the angle of Article 9,
either taken alone (art. 9) or in conjunction with Article 14 of the
Convention (art. 14+9).
In these circumstances the Court is not required to rule on the
Government's preliminary objections.
III. ALLEGED VIOLATIONS OF ARTICLES 6 PARA. 1 AND 13 OF THE CONVENTION
(art. 6-1, art. 13)71. The applicants complained that the question of compensation for
their detention was determined in an unfair manner with insufficient
reasons and without affording them an opportunity to address the court.
They invoked Article 6 para. 1 of the Convention (art. 6-1) which, in
so far as relevant, reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal..." The Commission agreed with the applicants whereas the Government
contested the applicability of Article 6 para. 1 (art. 6-1) to the
proceedings in question.
72. The applicants further complained that, since the decisions of
the Military Appeal Court were final, no effective remedy under
national law for the violation of their rights under the Convention was
available to them. In their submission, this was in breach of
Article 13 of the Convention (art. 13), which reads:
"Everyone whose rights and freedoms as set forth in [the]
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."73. The Court notes that in matters of compensation for unlawful
detention, paragraph 5 of Article 5 (art. 5-5) constitutes a
lex specialis. Having already found a breach of that provision
(art. 5-5) (see paragraph 66 above), the Court does not consider it
necessary to examine whether the breach of the State's obligation to
grant compensation in respect of the applicants' unlawful detention was
also contrary to Articles 6 para. 1 or 13 of the Convention (art. 6-1,
art. 13).
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
74. Before the Commission, Mr Tsirlis and Mr Kouloumpas complained
that, as a result of their detention they were subjected to treatment
prohibited under Article 3 of the Convention (art. 3). This provision
(art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."75. The Government agreed with the Commission that, given the level
of severity required by Article 3 (art. 3), it could not be said that
the applicants' detention had amounted to "inhuman or degrading
treatment or punishment".
76. The Court notes that the applicants have not sought to
substantiate this complaint before it. Accordingly, no breach of
Article 3 (art. 3) has been established.
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
77. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party." A. Damage
78. Mr Tsirlis and Mr Kouloumpas sought compensation for damage in
the amount of 14,700,000 drachmas (GRD) each.
79. For the Government the claims were unjustified and unsupported
by any evidence of damage. An award of GRD 600,000 should be
sufficient to cover both damage and costs in respect of the instant
case and of the case of Georgiadis v. Greece, which were pleaded
jointly (see paragraph 3 above).
80. The Court observes that Mr Tsirlis and Mr Kouloumpas spent
thirteen and twelve months respectively in what was unlawful detention
(see paragraph 62 above). The very fact of their deprivation of
liberty must have produced damage of both pecuniary and non-pecuniary
nature. However, no compensation was granted by the domestic courts.
Making an assessment on an equitable basis, as required by
Article 50 (art. 50), the Court grants Mr Tsirlis GRD 8,000,000 and
Mr Kouloumpas GRD 7,300,000 in respect of any damage they have
sustained.
B. Costs and expenses
81. The applicants claimed a total of GRD 11,200,000 in respect of
legal costs and expenses incurred both in the domestic proceedings and
before the Convention institutions.
82. The Government found the sum excessive, whereas the Delegate of
the Commission left the matter to the Court's discretion.
83. It is to be observed that the main thrust of the applicants'
allegations has led to the finding of a violation. The sum claimed is,
however, excessive. Therefore, the Court, making an equitable
assessment as required by Article 50 (art. 50), awards the applicants
a global sum of GRD 2,000,000 in respect of costs and expenses.
C. Default interest
84. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of adoption
of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 1 of the
Convention (art. 5-1);2. Holds that there has been a violation of Article 5 para. 5 of the
Convention (art. 5-5);3. Holds that it is not necessary to examine whether there has been
a violation of Article 9, either taken alone (art. 9) or in
conjunction with Article 14 of the Convention (art. 14+9);4. Holds that it is not necessary to examine whether there has been
a violation of either Article 6 para. 1 or 13 of the Convention
(art. 6-1, art. 13);5. Holds that there has been no violation of Article 3 of the
Convention (art. 3);6. Holds
(a) that the respondent State is to pay, within three months,
8,000,000 (eight million) drachmas to Mr Tsirlis, and
7,300,000 (seven million three hundred thousand) drachmas to
Mr Kouloumpas, in respect of both pecuniary and non-pecuniary
damage; and a global sum of 2,000,000 (two million) drachmas in
respect of costs and expenses; (b) that simple interest at an annual rate of 6% shall be payable
from the expiry of the above-mentioned three months until
settlement;7. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 29 May 1997.
Signed: Rolv RYSSDAL
PresidentSigned: Herbert PETZOLD
Registrar