Report of the Special Rapporteur on freedom of religion or belief - Country visit to Greece

1. The Special Rapporteur on religious intolerance, acting within the terms of his mandate, visited Greece from 18 to 25 June 1996 at the invitation of the Greek Government.

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(d) Legislation concerning conscientious objection

31. Greek law does not make provision for civilian service for conscientious objectors in place of military service. The Greek State instituted, in 1977, by Act No. 731, an exceptional obligation to military service for a period of time double that of armed obligatory military service for those refusing to bear arms due to religious beliefs. In 1988, article 1, paragraph 2, of Act No. 1763, provided that those refusing to bear arms due to their religious or ideological beliefs were obliged to serve full or partial military duty double in length to that which, in each case, was required from the category in which they belonged. In article 5, paragraph 3 of the same Act, it was also provided that those who would serve, due to a court conviction for refusal to serve even their unarmed military service, a term of imprisonment equal in duration to the term of military service owed by them, in each case, were discharged from the call to enlist after their release from prison.

32. Based on the provisions mentioned above, the conscientious objectors capable of serving are obliged to perform military service. Those refusing to serve are referred to the military court with the charge of disobedience (art. 70 of the Military Penal Code). This charge is punishable by penalties ranging from six months imprisonment to the death penalty, depending on the situation in the country (war, general mobilization, peace, etc.). Act No. 1763 also exempts religious ministers of the so-called "known religions" from military service.

33. There is an ongoing debate on the constitutionality of introducing alternative civilian service. Jurists who consider that alternative civilian service is contrary to the Constitution believe that, since the Constitution guarantees that all Greeks are equal before the law (art. 4, para. 1) and requires its citizens to contribute to the defence of their country (art. 4, para. 6), permitting certain persons to perform civilian service would be tantamount to treating two groups of citizens unequally. Another objection drawn from the Constitution rests on article 13, paragraph 4: "No person shall be exempt from discharging his obligations to the State nor may he refuse to comply with the law by reason of his religious convictions".

34. Other jurists and non-governmental representatives cite instead article 13, paragraph 1, which provides that "freedom of religious conscience is inviolable. Enjoyment of individual and civil rights does not depend on the individual's religious beliefs". Some argue that alternative civilian service could also make a contribution to the country's defence. Others favour alternative civilian service because article 2, paragraph 1, stipulates that "it is the primary obligation of the State to respect and protect the value of the human being"; and article 5, paragraph 1, states that "all persons shall have the right to develop their personality freely ...".

35. According to the Ministry of Defence, the Greek Government is today dealing with conscientious objectors with extreme sensitivity, despite the fact that the constitutional framework does not allow any room for change of the existing legal framework.

36. In 1988, a draft law proposal for unarmed or social service was submitted to the Parliament. The provisions of this draft were, however, adjudged by the Central Law Preparatory Committee to be directly in conflict with article 4, paragraph 6, and article 13, paragraph 4, of the Constitution. Thus that draft law proposal did not, finally, reach the voting stage.

37. In 1991, the Ministry of Defence decided to draw up a new draft law proposal for unarmed or social (civilian) service. For this reason, the Ministry requested the opinion of the Legal Council of the State on the question: "Is the adoption of the institution of social (civilian) service for those refusing to bear arms and to serve even unarmed service in the Armed Forces due to their religious beliefs or reasons of conscience in accordance with the Constitution?". The Legal Council met on 10 October 1991 and issued opinion No. 669/90 in which it was unanimous in stating that the Constitution, as regards the reasons for institution of unarmed or social duty, was definitive, and superseded customary law. This is because, on the one hand, the provision of article 13, paragraph 4, does not allow for religious objections and, on the other, article 4, paragraph 6, does not allow for objections of an ideological or moral character. It is thus clear that the quest for a constitutional justification for conscientious objectors in the provisions of article 4, paragraph 6, of the Constitution is fruitless. Not only does it pre-empt any other constitutional justification basis, but it also brings out very emphatically this important provision as an immovable constitutional obstacle to the acceptance of religious objections and the erosion of the character and content of the military obligation. Therefore, based on the above-mentioned facts and justification, the Legal Council of the State was unanimous in its opinion that the adoption by law of the social (civilian) service would be contrary to the Constitution.

38. Furthermore, according to the Ministry of Defence, special measures are applied in favour of conscientious objectors as regards both the serving of a sentence and the place of detention (see chap. II, sect. A, "The Jehovah's Witnesses"). According to the Ministry of Justice and the Ministry of Foreign Affairs, the Greek State, despite the provisions of the Constitution relating to defence, has modified its stand by adopting a law providing for unarmed alternative service with certain privileges favouring conscientious objectors.

Nevertheless, the conscientious objectors - in this instance, the Jehovah's Witnesses - have refused to wear uniforms, salute the flag or accept the period specified for performing alternative service. The Ministry of Defence claims that the Jehovah's Witnesses, by asking to be exempted from national service, were asking to receive treatment which would discriminate against other Greek citizens. The authorities maintain that the Jehovah's Witnesses must, as Greek citizens, respect the law in force and bear in mind the particular position of Greece, a small State that must protect its territorial integrity. According to the Ministry of Justice, the Jehovah's Witnesses are being prosecuted not for their beliefs but for having violated the law. The Ministry of Foreign Affairs indicated that the authorities were ready to make concessions provided they had no impact on national issues. The impact the Greek authorities seem to have in mind is any impairment of the obligation to perform national service and of the unity of the country.

39. According to the non-governmental representatives, it is necessary for the Greek State to adopt legislation recognizing the right to conscientious objection with respect to military service in order to put an end to infringements of the religious freedom of conscientious objectors, in particular Jehovah's Witnesses, and of their human rights in general within Greek society (see chap. II, sect. A, "The Jehovah's Witnesses"). The well-known Exemption of Ministers of Religion Act (Act No. 1763/1988) should also be fully applied (see chap. II, sect. A, "Protestant minority").

40. The Special Rapporteur draws attention to resolution 1989/59 of 8 March 1989 of the Commission on Human Rights of the United Nations, reaffirmed inter alia in 1991 (resolution 1991/65 of 6 March 1991) and in 1993 (resolution 1993/84 of 10 March 1993), which recognizes "the right of everyone to have conscientious objections to military service as a legitimate exercise of the right to freedom of thought, conscience and religion as laid down in article 18 of the Universal Declaration of Human Rights as well as article 18 of the International Covenant on Civil and Political Rights" (para. 1) and which recommends to Member States "with a system of compulsory military service, where such provision has not already been made, that they introduce for conscientious objectors various forms of alternative service" (para. 3) which "should be in principle of a non-combatant or civilian character, in the public interest and not of a punitive nature" (para. 4).

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Source: http://www.un.org/documents/ga/docs/51/plenary/a51-542add1.htm