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CASE OF PAPAVASILAKIS v. GREECE
CASE OF PAPAVASILAKIS v. GREECE
JUDGMENT
(Extracts)
STRASBOURG
15 September 2016
FINAL
15/09/2016
This judgment has become final under Article 44 § 2 of the Convention final but it
may be subject to editorial revision.
PAPAVASILAKIS v. GREECE JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 66899/14) against the
Hellenic Republic lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek national, Mr Leonidas Papavasilakis (“the
applicant”), on 4 October 2014.
2. The applicant was represented by Mr T. Sigalas, a lawyer practising
in Athens. The Greek Government (“the Government”) were represented by
their Agent’s Delegates, Ms E. Tsaousi, Senior Adviser, State Legal
Council, and Ms A. Dimitrakopoulou, Adviser, State Legal Council.
3. The applicant alleged a violation of Article 9 of the Convention.
4. On 2 September 2015 the Government were given notice of the
application.
5. The organisation Alliance Defending Freedom (ADF) International,
dedicated to protecting fundamental freedoms including the right to life,
marriage, the family and freedom of religion, was given leave to intervene
in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3
of the Rules of Court).
THE FACTS
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.
4 PAPAVASILAKIS v. GREECE JUDGMENT
THE LAW
B. Merits
44. The Government further contended that it was arbitrary for the
applicant to maintain that it was predictable that the two officers would
reject his application on the grounds that they were inherently prejudiced
against conscientious objectors. Referring to a document produced by the
Ministry of National Defence, the Government stated that in 2013 the
special committee had examined 172 similar applications to the one
submitted by the applicant and had accepted 158 of them. In 97 of the 158
cases, there had been a majority of military members sitting on the
committee (two officers and the adviser of the State Legal Council), and in
61 cases the composition had been balanced (two officers, one university
professor and the adviser of the State Legal Council). With that in mind, the
applicant could have asked for his application to be reconsidered by the
committee with all its members sitting.
45. In addition, the Government submitted that the record of the
applicant’s interview (see paragraph 9 above) showed that the members of
the committee had set out to assess the sincerity and seriousness of his
beliefs, and that to that end they had asked him a series of fundamental
questions to which he had not given clear and convincing answers. The
applicant’s argument that the special committee should have reached a
different conclusion on the grounds that he had been raised by a Jehovah’s
Witness mother and an atheist father was unconvincing, and he had failed to
prove that he had stable and sincere beliefs preventing him from performing
armed service.
46. The Government also contended that the applicant was unfounded in
arguing that the proof of a conscientious objector’s beliefs was established
by his leading a peaceful and law-abiding life. Allowing such an approach
would produce an absurd result, namely that the vast majority of men who
did not possess weapons and had never been involved in acts of violence
would be exempted from their military obligations.
47. Lastly, the Government objected to the applicant’s argument that the
procedure established by section 62 of Law no. 3421/2005 was
incompatible with the requirements of the Convention. In their submission,
a general complaint about the practical implementation of that procedure
was not sufficient to establish that it was defective or that there had been
any specific lack of impartiality in the applicant’s case.
(c) Alliance Defending Freedom International, third-party intervener
48. ADF International highlighted the pre-eminence of freedom of
conscience, which was recognised not only in the major human rights
treaties and the corresponding case-law but also in national legislation and
judicial practice and in various international instruments adopted by the
Council of Europe, the European Union and the United Nations.
49. ADF International acknowledged that it was difficult in practice for
the domestic courts to assess whether a claim relating to a belief was
8 PAPAVASILAKIS v. GREECE JUDGMENT
genuine. However, it stated that the Court had already set up a framework
for evaluating such claims and noted that the question was whether an
individual opposed to the obligation to perform military service was placed
in a serious conflict between that obligation and his or her genuinely and
deeply held religious or other convictions and was thus forced to act against
the dictates of his or her conscience. ADF International submitted that the
first prong of the test to be carried out to that end served as an initial
threshold: the conflict arising had to reach a certain level of seriousness.
The second prong of the test consisted in examining whether the belief was
genuinely and deeply held: the convictions asserted by the individual had to
be based on a set of identifiable and sincerely expressed values. The third
prong involved an assessment of the nature of the conflict, and in particular,
whether it had a moral dimension. Such an assessment was in the nature of
things subjective and amounted to determining what was required of the
individual seeking conscientious objector status.
duration of armed service. After the failure of his attempt to convince the
committee, he again asserted his conscientious objection by appealing to the
Supreme Administrative Court against the decision by the Minister of
National Defence to refuse his application, by paying the fine of 6,000 euros
after that court found against him and by accepting the risk of a prison
sentence for insubordination.
58. The Court observes that the applicant’s main complaint is that some
of the statements which he made to the committee – in particular, those to
the effect that submitting to authority was an obligation and that self-
defence was not a form of violence – were misinterpreted by the members
present, who were senior officers. It reiterates that it is not its task to
evaluate the meaning of the applicant’s statements and the way in which the
members of the committee interpreted them, this being first and foremost
the role of the national authorities (see Nejdet Şahin and Perihan Şahin v.
Turkey [GC], no. 13279/05, § 49, ECHR 2011).
59. Section 62 of Law no. 3421/2005 provides that when the special
committee examines applications for exemption from armed military service
for conscientious objectors, it should be composed of two university
professors specialising in philosophy, social and political sciences or
psychology, a senior or other adviser of the State Legal Council, and two
senior officers of the armed forces, one from the recruitment corps and one
from the medical corps. It is clear that special precautions have been taken
to ensure that the committee includes an equal number of military officers
and civil-society representatives with specialist knowledge in the field, and
is chaired by a legal expert. A number of substitutes equal to the number of
full members are also appointed for the same duration.
60. In this connection, the Court reiterates that the positive obligation on
States in accordance with its judgments in Bayatyan and Savda (both cited
above) is not confined to ensuring that their domestic legal system includes
a procedure for examining applications for conscientious objector status. It
also encompasses the obligation to provide for an effective and accessible
investigation into such matters (see Savda, cited above, § 99). One of the
fundamental conditions for an investigation to be considered effective is the
independence of the individuals conducting it.
61. The Court notes in the present case that if all the members of the
special committee had been present at the time when it interviewed the
applicant, the majority would have been civilians: two university professors
specialising in social sciences and the adviser of the State Legal Council
(acting as chairman), as against two high-ranking army officers. However,
only the chairman and the two officers were present on that date. In the
Court’s view, the applicant could legitimately have feared that, since he was
not a member of a religious community, he would not succeed in conveying
his ideological convictions to career officers with senior positions in the
military hierarchy.
PAPAVASILAKIS v. GREECE JUDGMENT 11
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