The First Section ECtHR has today held unanimously that the refusal of the Greek authorities to allow the applicant, Mr Papavasilakis, to perform alternative civilian work instead of compulsory military service had violated his rights under Article 9 ECHR (thought, conscience and religion).

Background

In January 2013 Mr Papavasilakis asked if he could carry out alternative civilian work instead of compulsory military service because he was a conscientious objector. He appeared before the Greek Army’s Special Commission to explain his request, referring in particular to the religious education he had received from his mother, a Jehovah’s Witness, and his rejection of war, violence or destruction in all its forms.His request was refused by the Special Commission. The composition of the Commission includes two university professors who on the day his case was heard were missing and had not been replaced. He appealed unsuccessfully to the Supreme Administrative Court and he was fined for insubordination. He appealed against the fine and that matter is still pending before the Mytilene Administrative Court; but the authorities had already seized a sum from his bank account.

The arguments 

In Papavasilakis v Greece [2016] No. 66899/14 [French only] relying on Article 6 (right to a fair hearing), he complained that the Supreme Administrative Court did not examine his complaint fairly and that there had been a violation of Article 9 because the Special Commission had been composed of a majority of servicemen. He also alleged that his request had not been examined properly or impartially because of the absence of two non-mlilitary board members. Under Article 9 taken together with Article 11 (assembly and association), he alleged that the rejection of his request for conscientious objector status had violated his negative freedom not to become a follower of a particular religion or a member of an anti-militarist organisation [34]. The parties did not dispute the applicability of Article 9 [37]. Mr Papavasilakis further noted that of the 158 applications received by the Special Commission in 2013, all or the vast majority had come from Jehovah’s Witnesses and fourteen had been rejected. He also pointed out that the Committee had been criticised by Amnesty International and other human rights NGOs [42].

The Government did not accept the argument that the Special Commission lacked impartiality: its members were equal and the absence of two of them during the consideration of the applicant’s request could not have affected the quorum or the nature of the Commission. Even assuming that the two professors had been present and voted in favour of the applicant, the Commission’s decision would not have been different [43]. Nor was it predictable that the two military officers would reject his application outright on the grounds that they were biased against conscientious objectors [44]. The Government claimed that Mr Papavasilakis had failed to demonstrate that he had a stable and sincere objection to  military service [45].

The judgment

The First Section noted that, under s 62 of Act No. 3421/2005, the Special Commission, when considering applications from conscientious objectors, had to include two university professors specialising in philosophy, social and political sciences and psychology, a counsellor or assessor from the Council of State and two senior officers of the armed forces. Its composition was determined in that way so that it was chaired by a lawyer and included an equal number of soldiers and civilians with specific knowledge in the field. A number of substitutes equal to that of the full members were also appointed [59]. The positive obligations of states parties included a requirement to establish an effective and accessible mechanism of inquiry; and for such an investigation to be considered effective those in charge had to be independent [60]. Because only the President and the two officers were present, the applicant could legitimately fear that the Commission would not be entirely impartial [61].

The Court concluded that, in the circumstances, the competent authorities had failed to fulfil their positive obligations towards Mr Papavasilakis under Article 9 and, accordingly, that there had been a violation of that provision [66].