AS TO THE ADMISSIBILITY OF Application No. 34369/97 by Iakovos THLIMMENOS against Greece

en

The European Commission of Human Rights sitting in private on
12 January 1998, the following members being present:

Mr S. TRECHSEL, President
MM J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
MM H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 December 1996
by Iakovos THLIMMENOS against Greece and registered on 8 January 1997
under file No. 34369/97;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;

- the observations submitted by the respondent Government on 6
August 1997 and the observations in reply submitted by the
applicant on 20 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen, born in 1955. He is an
economist and resides in Messinia, Greece. In the proceedings before
the Commission he is represented by Mr. N. Alivizatos and Mr. S.
Tsakyrakis, both of them lawyers practising in Athens.

The facts of the case, as they have been submitted by the
parties, can be summarised as follows:

A. The particular circumstances of the case

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

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

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

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

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

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

B. Relevant domestic law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COMPLAINTS

1. The applicant complains under Articles 9 and 14 of the Convention
about his non-appointment as chartered accountant. He stresses that the
only reason why he had not been appointed was his conviction for
refusal to enlist in the army and that this refusal was exclusively
motivated by his religious beliefs.

2. The applicant also complains under Article 6 para. 1 of the
Convention that he did not have a fair hearing in the determination of
his civil rights and obligations, because the Council of State took
into consideration, for the purposes of applying Article 22 para. 1 of
the Civil Servants Code, his conviction by the Permanent Martial Court
of Athens, although this was not an independent tribunal. He also
complains of the length of the proceedings before the Council of State.

3. In his observations in reply, the applicant complained that the
authorities' refusal to appoint him as a chartered accountant amounted
to a violation of his right under Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

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

On 26 May 1997 the Commission decided to communicate the
application to the respondent Government.

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

THE LAW

1. The applicant complains under Article 9 (Art. 9) of the
Convention taken on its own and in conjunction with Article 14
(Art. 9+14) about his non-appointment as chartered accountant further
to a conviction for insubordination for refusal to enlist in the army.

Article 9 (Art. 9) of the Convention provides as follows:

"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."

Moreover, Article 14 (Art. 14) of the Convention provides as
follows:

"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."

The Government submit that there has been no interference with
the applicant's right to freedom of religion under Article 9 (Art. 9)
of the Convention. Article 22 para. 1 of the Greek Civil Servants
Code, which precludes the appointment of persons convicted of a felony
to the civil service, applies generally and neutrally. It allows no
room for a case-by-case evaluation of the nature of the crime and of
the motives of the person who was convicted. Moreover, the Convention
does not guarantee the right of conscientious objection and, in any
event, the applicant's original conviction does not fall within the
competence of the Commission. As regards Article 14 (Art. 14) of the
Convention the Government submit that the reason for the authorities'
refusal to appoint the applicant to a charted accountant's post was his
criminal conviction and not his religious beliefs.

The applicant argues that he has not been convicted of a felony
but of a misdemeanour. It was Article 2 para. 4 of Law 731/1977 which
applied in his case and not Article 70 of the Military Criminal Code.
Moreover, the application of Article 22 para. 1 of the Civil Servants
Code in his case was entirely disproportionate, since no account was
taken of the nature of the post to which he sought appointment, of the
nature of the offence, of his motives and of his conduct after his
conviction. The refusal to appoint him to a post of chartered
accountant amounted to a second penalty for the same offence. In these
circumstances, the applicant argues that there was a violation of
Article 9 (Art. 9) of the Convention. As regards Article 14 (Art. 14)
of the Convention, the applicant points out that his conviction was
directly related to his religious beliefs.

The Commission, in the light of the parties' observations,
considers that this part of the application raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This part of the
application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not have a fair hearing in the determination of
his civil rights and obligations by the Council of State.

Article 6 para. 1 (Art. 6-1) of the Convention provides as
follows:

"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable
time by an independent and impartial tribunal established by
law."

The Government submit that the Commission is not competent to
reexamine the merits of a case, as the applicant invites it to do.

The applicant argues that the Council of State should not have
relied on a conviction pronounced by judges who were not independent.

The Commission notes that the applicant in essence disagrees with
the manner in which the Council of State interpreted Article 22 para. 1
of the Civil Servants Code and the requirements of the Constitution
concerning the composition of the military courts. However, even
assuming that Article 6 para. 1 (Art. 6-1) of the Convention applies
to the proceedings in question, the Commission is not competent to
examine alleged errors of fact or law committed by the domestic courts,
except where it considers that such errors might have involved a
possible violation of the rights and freedoms set out in the Convention
or the Protocols to the Convention (No. 12013/86, Dec. 10.3.89, D.R.
59 p. 100).

As no appearance of such a violation is disclosed in the
circumstances of the applicant's case, this part of the application
must be rejected as manifestly ill-founded in accordance with Article
27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the length of the proceedings before the Council of
State.

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

The applicant submits that the length of the proceedings cannot
be justified in a case which did not involve the taking of factual
evidence.

The Commission, in the light of the parties' observations,
considers that this part of the application raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This part of the
application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.

4. The applicant complains that the authorities' refusal to appoint
him as a chartered accountant amounted to a violation of his right
under Article 1 of Protocol No. 1 (P1-1).

The Commission notes that this complaint was first raised in the
applicant's observations in reply, which were submitted on
20 October 1997, i.e. more than six months after 28 June 1996 when the
final decision was issued in his case.

It follows that the applicant did not comply with the six months
rule set out in Article 26 (Art. 26) of the Convention and this part
of the application must, accordingly, be rejected in accordance with
Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, wihtout prejudging their merits, the
applicant's complaints concerning his right to freedom of
religion and his right not to be subjected to discrimination in
this respect

and, unanimously,

DECLARES ADMISSIBLE, without prejudging its merits, the
applicant's complaint concerning the length of the proceedings
before the Council of State and

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission

Countries
Theme
Institutions

Add new comment

This question is for testing whether or not you are a human visitor and to prevent automated spam submissions.

13 + 1 =
Solve this simple math problem and enter the result. E.g. for 1+3, enter 4.