CASE OF PAPAVASILAKIS v. GREECE
Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of conscience;Freedom of thought);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
6. The applicant was born in 1988 and lives in Ikaria. 7. On 30 July 2007 the applicant, wishing to pursue a course of higher education, applied for and was granted permission to defer his enlistment for military service. On 24 September 2012 he interrupted the deferral. As a result, he was required to report to the recruitment centre on 23 January 2013. 8. On 22 January 2013 he applied for leave to perform alternative service on the grounds that he was a conscientious objector. 9. On 27 May 2013 he appeared before the armed forces’ special committee (established by section 62 of Law no. 3421/2005) to explain the nature of his conscientious objection. He stated that his objection was based on moral values stemming from the religious education he had received from his mother, a Jehovah’s Witness, and on his own approach to life, involving the rejection of anything linked to war, violence or destruction in all its forms. The following is an extract from his interview: “Question: Tell us about your beliefs. Answer: I grew up in a home where we were respectful of God. My mother is a Jehovah’s Witness. My father is an atheist. I believe that since God does not allow me to perform armed service in this world, I would be insulting him if I were to do so. Question: So you are citing religious reasons to justify your refusal to perform armed service. Answer: In substance, yes, but as I have not yet been baptised, I cannot provide you with a certificate from the Church of the Jehovah’s Witnesses. That is why I am also relying on moral grounds. Question: Why have you not yet been baptised? Answer: I still have some way to go. My behaviour is not yet completely suitable. I have decided to get baptised, but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail. Question: How have you come to the conclusion that God has nothing to do with war? Answer: I have not drawn that conclusion, but if I do enlist and serve worldly power, I will find myself on the wrong side when God decides to take action. Question: Do you think it is feasible to eradicate violence from this world? Answer: It is hard to eradicate violence and armies by good will alone. Question: Have you ever witnessed a violent incident, and if so, how did you react? Answer: Yes, I was assaulted. I tried to keep my response to a minimum by immobilising the attacker. Question: By reacting in that way, were you not using violence? Answer: No, it was self-defence, and I do not think that self-defence involves the use of pure violence. Question: So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary? Answer: Yes, I acknowledge lawful authority. The law of mankind exists until the divine law arrives. I believe that people should submit to lawful authority. But there is a difference between submitting to it and becoming part of it. Question: Are you a member of a non-violent organisation? Answer: No; for me, religious reasons take priority over reasons linked to morals ...” 10. Only three of the five members of the special committee were present when it interviewed the applicant, namely two officers of the armed forces and an adviser of the State Legal Council. The other two members – two university professors specialising in psychology, philosophy or social sciences – were unable to attend and were not replaced. 11. On 27 May 2013 the special committee decided unanimously to propose that the applicant’s application be rejected. It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated. Firstly, he was not a member of the Jehovah’s Witnesses community, and secondly, he had not shown that he had taken part in non-violent movements; on the contrary, he had stated that self-defence was not a form of violence and that people should submit to lawful authority. 12. On 30 July 2013 the Minister of National Defence rejected the application on the grounds proposed by the special committee. 13. On 5 September 2013 the applicant applied to the Supreme Administrative Court for judicial review of the decision by the Minister of National Defence. 14. Firstly, he challenged the composition of the special committee that had adjudicated on his case, and complained in particular that the two university professors had been absent on that occasion. He submitted that as a result of their absence and the failure to replace them, the very nature of the committee had been distorted, since the military officers had formed a majority among the three members present. In the applicant’s view, the officers were inherently ill-disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them. 15. Secondly, the applicant argued that the Minister’s decision had not contained sufficient reasons, seeing that (a) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion; and (b) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti-authority or to publicise their views, whereas the law did not lay down any such conditions. 16. Thirdly, the applicant complained of an infringement of his right to conscientious objection, arguing that the mere assertion of that right, coupled with his behaviour in practice (not possessing a firearms licence or having any convictions for offences involving violence), was sufficient to justify his application for exemption from armed service. 17. In judgment no. 1289/2014 of 7 April 2014 the Supreme Administrative Court dismissed the applicant’s application. 18. In response to his first argument, it noted that the members of the committee sat on an equal basis and that the absence of two of the members therefore had no effect on the quorum and did not distort the nature of the committee. 19. With regard to his second argument, the Supreme Administrative Court explained that, after examining whether the applicant was a follower of a religion that prohibited the use of force, whether he had taken part in non-violent movements and whether his philosophy of life prevented him from handling weapons, the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour. It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination, holding that the law required clear proof of their beliefs and that, moreover, the fact of not falling within the exceptions provided for by law was insufficient. 20. As to the third argument, the Supreme Administrative Court held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection. Such an exemption had to be subject to the conditions laid down by law, including the submission of sound and convincing reasons to justify it. It added that conscientious objection could not be established on the basis of a simple declaration, and nor could it be inferred from negative facts, such as not having any convictions for assault and not possessing weapons. On the contrary, it was necessary to provide evidence of active behaviour over a certain period, but the applicant had failed to do so. 21. On 19 May 2014 the applicant was ordered to pay a fine of 6,000 euros (EUR) for insubordination; with interest for late payment, the amount was increased to EUR 7,940.85. On 11 July 2014 the applicant applied to the Mytilene Administrative Court to have the fine set aside. The case is still pending, but the authorities have seized a sum from his bank account. ...