Greek Ministry of National Defence respond to WRI's representation on behalf of Greek COs

First, received 12th September, 2013

REFER. :

• a. Constitution οf Greece
• b. Penal Code
• c. Military Penal Code
• d. Code of Criminal Procedure
• e. Act 3421/2005 'Recruitment of Greeks and other Provisions' Gazette issue 302/13-12-2005, volume Α'), following its amendment by Act 3883/2010, article 78, (Gazette issue 167/24 Sep.2010,vo1. Α')
• f. Ε. 420/79/81978/5.300/21-12-2005 Decision οf Hellenic Minister of National Defence (Gazette issue 1854/29-12-05,voΙ.Β1) , as amended by Ρ.429.1 /1 /280116/8.21 /11-1-11 Decision οf Hellenic Minister οf National Defence (Gazette issue 111 Β')
• f. R. no. 3132/28 June 2013/Μ0FΑ/04 Human Rights Directorate
• g. R. no. Ρ 6170 /44/8.1084/2 July 2013/ Perm.Rep.Geneva
• i. F. 900/96/60613/8. 490/8 July 2013/Mod.Greece/Gen.Dir. for Nat.Def. and Intern.Relations

1. Following the presentation of the NGO “WAR RESISTERS' INTERNATIONAL”, where specific reference was made to GREECE, we wish tο inform you οf the following:

a. Ιn accordance with the Greek Constitution Article 4, para. 4, ref. (a), military service is compulsory for all male Greeks to contribute tο the defence οf the Fatherland (National Defence). This applies to all male Greek citizens from 1St January of their 19th year of age until 31St December of their 45th year of age, in compliance with article 1 οf ref.(e). b. It is an armed military service normally performed in units and services of the Hellenic Armed Forces. Alternative civilian service is a form of national service performed in lieu of conscription by those recognised as conscientious objectors, under articles 59-65 of ref. (e), οn religious or moral grounds. The aforementioned alternative form of national service subject to the terms and conditions of the relevant Act,(e), is based οn the interpretative clause of Article 4, para.6 ,ref. (a), where it is explicitly specified that the law provides for mandatory performance οf other services outside the Armed Forces (alternative service) by those having substantiated conscientious objection to performing military service. c. If the request made for a status of conscientious objector is rejected, those concerned must conscript into the Armed Forces a month after the relevant rejection decision has been issued, under article 4, para.2, ref.(f). If they fail to report for conscription by certain deadlines, they are declared draft evaders, under article 51, para.1,ref.(e). Additionally, those recognised as conscientious objectors, who fail to report to the organisations/institutions they have been assigned to, by the specified deadline, are also declared draft evaders. d. Το be noted, that those performing alternative civilian service, are not military and therefore, they do not fall within the competence of military justice if they commit criminal offences. Instead, they come under the jurisdiction of civilian criminal courts. However, as concerns the offence of draft evading only (for the aforementioned reasons), they come under the jurisdiction of military justice. Those condemned for refusing to perform military service and serving a prison sentence of equal length or even longer than the alternative civilian service they would perform if granted the status of a conscientious objector, after being released from jail and, in compliance with article 65, para. 1, ref. (e), are exempt from draft calls. e. Draft evading constitutes α substantial, of wilful negligence, perpetuate offence and as such, seamlessly subject to direct response to court. The perpetration of the offence is continued until a specific fact puts an end to that perpetuate illegal situation. Then the crime starts being statute-barred. Ιn cases οf flagrant misdemeanour, the public prosecutor has the power to issue a warrant for the perpetrator's arrest in compliance with article 275, para.3, ref.(d). f. Cases that suspend the perpetration οf the crime of draft evading, in compliance with article 51, para.3, ref.(e) are, completing 45 years of age, conscripting into the Armed Forces, being arrested for draft evading, reporting to a military judiciary authority, or a conscription office, a decision taken by the military medical board to declare a draft evader unfit for conscription (Ι5) or to grant a draft evader a deferment οn health grounds. Draft evasion is also suspended as soon as a draft evader gets detained in a prison or by any authority, upon admission to a rehabilitation centre, or upon enlistment into tactical foreign armed forces, provided one has been officially granted draft deferment. g. Ιn accordance with article 32, ref.(c), those declared draft evaders are punished by imprisonment for a term not exceeding two years. Any offence punished by imprisonment constitutes α misdemeanour, in compliance with article 18, ref.(b). Misdemeanours are statute-barred after five years have passed as provided for by article 111, ref.(b), unless limitation period expires, in which case the deadline is extended.

2. Therefore, it is concluded that conscription is mandatory up to the age of 45 for all male Greek citizens. Should anyone, without justifiable cause, fail to report for military οr alternative civilian service, Armed Forces or Services must declare them draft evaders

Draft evasion status is stopped for the above mentioned reasons and then draft evaders' conscription is scheduled again. For as long as one fails to perform military or alternative civilian service, they shall be prosecuted for the perpetuate crime of draft evasion, once more. Finally, the crime of draft evasion is stopped when those prosecuted reach the age of 45. Then, such misdemeanours start being statute-barred and prosecution stops after five years have passed. Consequently, military service may not be compulsory after the 45 t h year of age, but penal sanctions continue to exist for the draft evasion offence that has not been statute- barred.

Second, received: 17th October, 2013

Referring to the NGO “WAR RESISTERS INTERNATIONAL” allegations regarding Greece, concerning the management of conscientious objectors of our country and to the extent the operation of military justice is concerned, we present the following:

A. In the Hellenic penal justice system there is no separately categorised, delictum sui generis, where those who declare themselves as conscientious objectors are subject to prosecution on the basis of the circumstances the offence was committed and are taken to court. More specifically, the competent military justice authorities prosecuted those who refused to perform armed or unarmed military service invoking their ideological, moral or religious convictions, mainly for the offence of disobedience and secondarily for the offence of draft evasion, in compliance with the provisions of the existing legal framework (Articles 53 and 32 of the Military Penal Code), until Act.2510/1997 was passed. The said Act, in Article 18, recognised the right of conscientious objectors to fulfill their military service obligations as provided for by the Constitution, by means of unarmed military service or alternative, civil, social service. After the aforementioned Act 2510/97 was passed and the Presidential Decree 292/2003 was issued (which codified all current scattered enlistment provisions) a few groups of Greek citizens, supposedly conscientious objectors, made use of related provisions for alternative fulfillment of their military obligations, with no further penal consequences for this specific choice of theirs. Draftees totally refusing to perform their related constitutional obligations, stating that they are not covered by legislation pertaining to unarmed or alternative social service, are prosecuted on a case by case basis by competent judicial authorities of military justice, mainly for the offense of draft evasion. That said, the number of warrants of arrest issued and the decisions reached by military courts, regarding conscientious objectors cases is decreasing (given the use of alternative regulations of A.2510/1997 and PD 292/03 by a considerable number of this specific group of Greek citizens).

B. As concerns conscientious objectors falling within the jurisdiction of military courts (a situation which arises when a “conscientious objector” totally objects to the conscription – performance of his military obligations, stating that he is not covered by the legislation pertaining to unarmed or alternative social service, thus committing the offense of draft evasion), we should state the following : a. The constitutional obligation to conscription (provided by article 4 par. 6 of the current Constitution) applies to all (concerns all Greek citizens) and is binding. It is an armed service, while conscripts who invoke their ideological, moral or religious reasons to substantiate their choice not to perform their military service, are offered the possibility to opt for alternative, civilian, social service. If the request of a citizen to come under the provisions for alternative service is rejected, he will be obliged to enlist in the Armed Forces, and in case he fails to, he is declared a draft evader. Moreover, draft evaders are also those who have acquired a conscientious objector status but have not reported for duty to provide alternative services, by a set deadline. In the event that a Greek citizen does not report for military or alternative social service during a period which spans from January 1st of his 19 year of age to December 31st of his 45 year of age, without having been legally excluded from the Armed Forces, the conscription authorities are obliged to declare him a draft evader, and the Public Prosecutor's Offices of the respective, competent, military courts are obliged to initiate the prosecution procedure for this specific ex officio prosecuted offense.

b. The special status of the criminal offence of 'draft evasion' (objective and subjective information), is described in detail in the Military Penal Code (MPC) and the respective military enlistment legislation. In accordance with MPC, article 32 'Anyone declared draft evader, in conformity with the Enlistment Act, is punished : a. In peacetime, by imprisonment for a term not exceeding two years. ...' Furthermore, under MPC, article 5, para.3 ( Military Penal Code-Ratification Law 2287/95 '...anyone called for conscription is also a military from the expiry of the set deadline. The Military Penal Code applies only as concerns the criminal offence of draft evasion.' It is an assumed military capacity , related to the draft evading offense, since the very failing to report for conscription constitutes one). That provision of MPC, Article 5 has been deemed constitutional by a series of decisions of the Supreme Court, that has judged appeals against decisions of the Military Court of Appeal, on draft evading cases.

c. Draft evading constitutes a substantial, of willful negligence, perpetuate offence, (that is the infringement of the right lasts as long as the illegal situation, caused by the perpetrator's act, is continued,) and therefore, seamlessly subject to direct response to Court. The perpetration of the offence is continued until a specific fact, of those referred to in Act 3421/05, Article 51, para. 3, puts an end to it. Such facts could be, among others, being arrested for draft evasion, reporting to a military court authority, or a conscription office to end his draft evasion, as well as completing 45 years of age, (as that age is the deadline for mandatory military service). After draft evasion status is stopped, conscription is rescheduled. Failing to report for military or alternative civilian service, constitutes another substantial offense, that , by no means , cannot go beyond one's 45th birthday. As soon as the draft evasion status is stopped, (in any one of the aforementioned or otherwise mentioned ways in the relevant legislation), starts the limitation period which expires after five years, as in every other case of misdemeanour, given that such offences are punished by imprisonment . (combined interpretation of MPC, Article 32 and Penal Code, Articles 18 and 111). As a result, military service may not be mandatory after the 45th year of age, but penal sanctions continue to exist, which means that one may be taken to court for draft evasion even though he is not subject to conscription any longer.

d. Military courts (courts martial) and military justice are a constitutionally established institution ( Greek Constitution Article 96 para. 4A and 5 ) , while military judges enjoy both personal and substantive independence, in accordance with the provisions of the Military Judiciary Code (Ratification Act 2304/95). Specifically, in compliance with the 'Armed Forces Judiciary Code' , Act 2304/95, Article 2 , as provided for by the Greek Constitution, Article 96, para 5, military judges enjoy (article 87 par. 1 of the Greek Constitution) both personal and substative independence as their colleagues in civil, penal and administrative courts. The concept of substantive or substantial independence is specified in the provision of the Greek Constitution, article 87, para. 2. Judges, when applying the law, are entirely autonomous , without any inducements or pressures, subject to nothing but the Constitution and the law and the commands of their conscience. Additionally, besides the Military Penal Code (which is a 'special penal law'), military courts apply the Penal Code and the Code of Penal Procedure, fully and with no exception. As a result, when a penal case is brought before them, they apply all procedural safeguards as befits a modern rule of law and serve the basic right to a fair trial.