conscientious objector to compulsory military service was charged and detained – violation found

Facts

The author is a national of Greece. The author is a conscientious objector to compulsory Greek military service. He repeatedly objected to his periodical drafting, and each time was punished. He once undergone a series of discriminatory work through the civil service alternative, and the following times he was detained, tried, and imprisoned for his stance. The events unfolded over a period of 14 years during which the justice process was delayed and criminal charges against him repeated, despite new laws on the status of conscientious objectors to military service being enacted meanwhile.  

The author claims that the State party has violated many of his rights under the Covenant. article 18(1) was violated by the lack of recognition of the right to conscientious objection until 2001 and article 18(2) through the penalties and fines imposed on him. He submits that his right to article 9(1) was breached by having been arbitrarily arrested and detained on multiple occasions.  Article 14(1) was violated as the author was tried by military courts which are not competent to try civilians, and that article 14(7) was violated as he was repeatedly tried for the same offences as before in the 2^nd and 3^rd proceedings against him. Lastly, he claims to have his rights under 12(2) violated as the travel ban issued against him precluded him from leaving Greece.

Admissibility

The Committee noted the State party’s argument that the author failed to exhaust domestic remedies because, in the third set of proceedings, he did not appeal the decision to the Court of Cassation. However, it finds that the author had justified reasons to believe any appeal would not result in the carriage of justice, but rather just a waste of resources on his part. Hence, lack of  exhaustion of domestic remedies did not make the communication inadmissible. The Committee also noted the State’s argument that the author, by having submitted the case to the Committee 6 years after the conclusion of domestic proceedings, had abused his right to submission and the communication should be found inadmissible rationae temporis. However, the author could not have possibly foreseen the application of the 5-year rule at the time of the delivery of his final conviction (2009), the delayed adoption of the Committee’s Concluding Observations on Greece as well as fear of reprisals justify going over the 5-year rule in this case.

The Committee considers that the issues raised in the communication are admissible under articles 9, 12 (2), 14 (7) and 18 (1) of the Covenant. The Committee does not consider the author’s claim under article 14(1) admissible because of a lack of exhaustion of domestic remedies. The Committee further considers that the author’s claims concerning his alleged discrimination also appear to raise issues under article 26 of the Covenant, deciding to take on the examination of a breach beyond that requested by the author.

Merits

The Committee recalled that the right to freedom of thought, conscience and religion can never be derogated from. The Committee found that the right to conscientious objection can be derived from article 18(1), recalling that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18 (1) of the Covenant and it considered that no reason was brought before it to find otherwise in the present case. Hence, this right shall not be impaired by coercion. Additionally, the Committee agrees that the alternative civil service did not constitute a real alternative, as the application of extensive working hours and lack of adequate compensation for conscientious objectors is clearly a disincentivising practice. Having found a violation of art. 18, the Committee does not consider it necessary to decide on breaches of art. 26.

The author’s detention and imprisonment were also violations of his right to be free from arbitrary detention (art. 19(1), detention for punishment for legitimate exercise of freedom of religion and conscience), as such was inappropriate, unjust, unpredictable and lacked a due process of law as well as being carried out for the purpose of contrasting his freedom of thought. The author’s freedom of movement was also violated as the unduly delay of the judicial processes forced him to be unable to leave Greece for a period of 14 years, which cannot be justified. Further, the Committee found that the repeated detentions of the author, each as a result of the same offence of refusal to be drafted is in violation of the author’s right not to be repeatedly tried for the same offence.

The Committee concludes Greece violated the author’s rights under articles 9 (1), 12 (2), 14 (7) and 18 (1) of the Covenant.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. Accordingly, the State party is obligated to

• expunge the author’s criminal record,
• to reimburse all sums paid as fines and
• to provide adequate compensation.

The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Separate Opinions

Dissenting: Jose Manuel Santos Pais

• The explanations brought forward by the author justifying the delay in bringing the communication to the Committee are not convincing, and the case should be found inadmissible rationae temporis.
• The communication should have also been found inadmissible for failure to exhaust domestic remedies, as the Committee can only conjecture the outcome of the Greek Court of Cassation.
• The convictions of the author after he refused to perform alternative service are a direct consequence of his status as conciencious objector being lost – so the author lost victim status as a result of his failure to perform military and alternative civil service.
• Article 9 violations are unfounded, as the arrests and convictions were always prescribed by law.
• Article 12 violations are also unfounded as restriction of freedom of movement is legitimised by article 12(3) when the reason is pending arrest warrants. As no other less intrusive meausres were available, this should not be found as a violation.
• As the author was at times convicted for refusal to perform compulsory military service while other times on failure to perform alternative civilian service, he was not convicted multiply for the same offence, hence there was no art. 14(7) violation. The author was rather a repeated offender.
• The provision of alternative civilian service does not interfere with the objector’s rights, debasing article 18 claims.
• The author’s arguments concerning punitive aspects of civilian service are mostly speculative.

 

Partly Dissenting: Helene Tigroudja

Article 26, the “equality clause” should have been decided upon. The jurisprudence of the Committee is “rather inconsistent” on the equality clause, and the current decision goes against previous Committee jurisprudence. Not deciding on art. 26 when this was the heart of the issue while making a clear pronouncement on article 18 is wrong.

 

Implementation

Deadline for implementation follow-up report: 02.01.2022

 

Author: Laura Cestaro