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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GEORGIADIS v. GREECE - 21522/93 [1997] ECHR 28 (29 May 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/28.html
Cite as: [1997] 24 EHRR 606, 24 EHRR 606, (1997) 24 EHRR 606, [1997] ECHR 28
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In the case of Georgiadis v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr N. Valticos,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr D. Gotchev,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 24 January and 25 April 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 56/1996/675/865. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 17 April 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 21522/93) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by a Greek national,
Mr Anastasios Georgiadis, on 27 February 1993.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 6 and 13 of the Convention (art. 6,
art. 13).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
3. On 27 April 1996, the President of the Court decided, under
Rule 21 para. 7 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider this
case and that of Tsirlis and Kouloumpas v. Greece
(no. 54/1996/673/859-860). The Chamber to be constituted for that
purpose included ex officio Mr N. Valticos, the elected judge of
Greek nationality (Article 43 of the Convention) (art. 43), and
Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b)). On
the same date, in the presence of the Registrar, the President drew by
lot the names of the other seven members, namely Mr F. Gölcüklü,
Mr R. Pekkanen, Mr A.N. Loizou, Mr A.B. Baka, Mr D. Gotchev,
Mr P. Kuris and Mr U. Lohmus (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Greek Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 25 October 1996 and
the applicant's claims for just satisfaction (art. 50) on 31 October
1996.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 January 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Counsel;
(b) for the Commission
Mr P. Lorenzen, Delegate;
(c) for the applicant
Mr P. Bitsaxis, of the Athens Bar, Counsel.
The Court heard addresses by Mr Lorenzen, Mr Bitsaxis and
Mrs Grigoriou and also replies to its questions.
AS TO THE FACTS
I. The circumstances of the case
6. Mr Georgiadis was born in 1963 and lives in Athens.
7. On 3 January 1989 the applicant was appointed minister of
religion for the prefectures of Karditsa and Larissa by the
Central Congregation of the Christian Jehovah's Witnesses of Greece.
He was given authority, inter alia, to perform wedding ceremonies
between persons of that faith and to notify such weddings to the
competent registry offices. By letter of 13 January 1989 the
Director of Internal Affairs of the Prefecture of Karditsa notified the
registry offices of Karditsa of his appointment. By letter of
24 January 1989 the registry offices of Larissa were also notified of
it.
8. On 11 September 1991 the applicant lodged an application with
the Serres Recruitment Office ("the Recruitment Office") to be exempted
from military service in accordance with section 6 of Law no. 1763/1988
("the 1988 Law"), which grants such a right to all ministers of "known
religions". On 17 September 1991 the Recruitment Office rejected the
application on the ground that Jehovah's Witnesses were not a "known
religion".
9. On 7 October 1991 the applicant lodged an appeal with the
Director for Recruitment at the General Headquarters for
National Defence ("the Director for Recruitment"). It was rejected on
18 December 1991 on the ground that he was not a minister of a "known
religion". On the same day, the Recruitment Office ordered the
applicant to report for duty at a military training centre in Nauplia
on 20 January 1992.
10. The applicant presented himself at the Nauplia centre, as
ordered, but refused to join his unit, invoking his status as a
minister of a "known religion". Taking the view that the applicant had
committed the criminal offence of insubordination (see paragraph 19
below), the military commander of the training centre detained him
pending trial in the centre's disciplinary unit and ordered a
preliminary investigation into the facts. The investigation completed,
the applicant was committed for trial on 29 January 1992. The order
for his detention was renewed and he was transferred to the
military prison at Avlona.
11. On 13 February 1992 the applicant brought proceedings in the
Supreme Administrative Court (Symvoulio tis Epikratias) to have the
Director for Recruitment's decision of 18 December 1991 quashed.
12. On 16 March 1992 the Athens Permanent Army Tribunal
(Diarkes Stratodikio), composed of one military judge and four ordinary
military officers, examined the criminal charges against the applicant.
Having heard the evidence and the parties' submissions on the question
of the applicant's guilt, the tribunal withdrew for deliberations.
After the deliberations, the President announced the verdict. The
applicant was acquitted because "there was no act of insubordination"
as the applicant had no obligation to perform military service, being
a minister of a "known religion".
13. The applicant was immediately released but was ordered to
report for duty on 4 April 1992 at the Nauplia centre. On that date
the applicant presented himself at the Nauplia centre, where he was
ordered to join the military forces. When he refused, he was again
charged with insubordination and placed in detention. On 15 April 1992
he was committed for trial.
14. On 8 May 1992, the Athens Permanent Army Tribunal examined the
new criminal charges against the applicant. Having heard the evidence
and the parties' submissions on the question of the applicant's guilt,
the tribunal withdrew for deliberations. After the deliberations, the
President announced the verdict. The applicant was acquitted, because
there were doubts as to his intention to commit the criminal offence
of insubordination. The following order was attached to the tribunal's
verdict and read out with it: "No compensation should be granted to the
applicant for his detention pending trial, because his detention was
due to his own gross negligence."
15. The applicant was immediately released from Avlona Prison,
given leave of absence and ordered to report for duty at the
Nauplia centre on 22 May 1992. He was again ordered to join his unit.
When he refused he was charged with insubordination and detained.
16. On 7 July 1992 the Supreme Administrative Court quashed the
Director for Recruitment's decision of 18 December 1991 on the ground
that Jehovah's Witnesses were a known religion and the
administrative authorities had not challenged the evidence produced by
the applicant that he was a minister of that religion.
17. On 27 July 1992 the applicant was provisionally released
following a decision of the Salonika Permanent Army Tribunal sitting
in chambers. A certificate of provisional exemption from military
service was issued on the ground that the applicant was a minister of
a "known religion".
18. On 10 September 1992 the Salonika Permanent Army Tribunal,
considered the criminal charges against the applicant. Having heard
the evidence and the parties' submissions on the question of his guilt,
the tribunal withdrew for deliberations. After the deliberations, the
President announced the verdict. The applicant was acquitted, because
he had not had the intention of committing the offence of
insubordination. The following order was attached to the tribunal's
verdict and read out with it: "The State is under no obligation to
compensate the applicant for his detention pending trial, because his
detention was due to his own gross negligence."
II. Relevant domestic law and practice
A. The Military Criminal Code
19. Article 70 of the Military Criminal Code provides as follows:
"A member of the armed forces who refuses ... to obey an order
by his superior to perform one of his duties is punished ..."
20. On 16 March 1992 the Athens Permanent Army Tribunal held that
a Jehovah's Witnesses minister of religion who had refused to collect
military clothing when first called upon to join the army was not
guilty of insubordination. The tribunal considered that there had been
no act of insubordination, because the accused had no obligation to
perform military service as he was a minister of a "known religion".
21. Article 434 of the Code provides that where a procedural matter
is not regulated in the Military Criminal Code, the
Code of Criminal Procedure applies.
B. The Code of Criminal Procedure
22. The relevant provisions of the Code of Criminal Procedure read
as follows:
Article 533 para. 2
"Persons who have been detained on remand and subsequently
acquitted ... shall be entitled to request compensation ... if
it has been established in the proceedings that they did not
commit the criminal offence for which they were detained ..."
Article 535 para. 1
"The State shall have no obligation to compensate a person who
... has been detained on remand if, whether intentionally or
by gross negligence, he was responsible for his own detention."
Article 536
"1. Upon an oral application by a person who has been
acquitted, the court which heard the case shall rule on the
State's obligation to pay compensation in a separate decision
delivered at the same time as the verdict. However, the court
may also make such a ruling proprio motu ...
2. The ruling on the State's obligation to pay compensation
cannot be challenged separately; it shall, however, be quashed
if the decision on the principal issue of the criminal trial
is reversed."
Article 537
"1. A person who has suffered loss may seek compensation at
a later stage from the same court.
2. In those circumstances the application must be submitted
to the prosecutor [Epitropos] at that court no later than
forty-eight hours after the delivery of the judgment in
open court."
Article 539 para. 1
"Where it has been decided that the State must pay
compensation, the person entitled thereto may bring his claim
in the civil courts, which shall not call in question the
existence of the State's obligation."
Article 540 para. 1
"Persons who have been unfairly ... detained on remand must be
compensated for any pecuniary loss they have suffered as a
result of their ... detention. They must also be compensated
for non-pecuniary loss ..."
PROCEEDINGS BEFORE THE COMMISSION
23. Mr Georgiadis applied to the Commission on 27 February 1993.
Relying on Articles 3, 5 paras. 1 and 5, 6 para. 1, 9, 13 and 14 of the
Convention (art. 3, art. 5-1, art. 5-5, art. 6-1, art 9, art. 13,
art. 14), he complained that his detention had been unlawful and
amounted to discrimination on account of his religious beliefs, that
he had been subjected to inhuman and degrading treatment, and that he
did not have a fair hearing in the matter of compensation for his
unlawful detention. Lastly, Mr Georgiadis complained under Article 4
para. 1 of Protocol No. 7 (P7-4-1) that he had been twice prosecuted
for an offence of which he had been previously acquitted.
24. On 10 October 1994 the Commission declared the application
(no. 21522/93) admissible as to the issues arising from the
military tribunals' rejection without a hearing of the applicant's
claim for compensation and the inadequate reasoning of the relevant
decisions. The complaint under Article 5 para. 1 (art. 5-1) was
declared inadmissible for failure to exhaust domestic remedies. In its
report of 27 February 1996 (Article 31) (art. 31), the Commission
expressed the unanimous opinion that there had been a violation of
Article 6 para. 1 (art. 6-1) and that it was not necessary to examine
whether there had been a violation of Article 13 (art. 13).
The full text of the Commission's opinion is reproduced as an
annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
25. At the hearing, the applicant requested the Court to find that,
in his case, Articles 6 para. 1 and 13 (art. 6-1, art. 13) had been
violated.
The Government, for their part, asked the Court to reject every
allegation of a violation of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
26. Mr Georgiadis complained that he did not have a fair hearing
in the matter of compensation for his allegedly unlawful detention.
He invoked Article 6 para. 1 of the Convention (art. 6-1) which, in so
far as relevant, reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
The Commission agreed with the applicant whereas the Government
contested the applicability of Article 6 para. 1 (art. 6-1) to the
proceedings in question.
A. Applicability of Article 6 para. 1 (art. 6-1)
27. Mr Georgiadis argued that, when detention follows a conviction
that is overturned on appeal, the ensuing claim for compensation is
governed by the civil law: it can be transferred, inherited and
otherwise disposed of following the modalities of the civil law. In
his submission, it is irrelevant that the adjudicating authority is a
military tribunal ruling in public-law proceedings; it is a civil court
which decides on the amount of compensation (see paragraph 22 above).
In these circumstances, the proceedings on his entitlement to
compensation in respect of his detention following conviction involved
a "determination of his civil rights" within the meaning of Article 6
para. 1 (art. 6-1).
28. The Commission considered that the outcome of the proceedings
before the military courts was directly decisive for the applicant's
right to compensation. It concluded that, by refusing to grant
compensation, the permanent army tribunals "determined" a "right" which
could arguably be said to be recognised under domestic law. It further
considered that the applicant's claims under Article 533 of the
Code of Criminal Procedure (see paragraph 22 above) concerned pecuniary
and non-pecuniary damage resulting from lengthy periods of detention.
Therefore, the right at issue was a "civil right" within the meaning
of Article 6 of the Convention (art. 6), notwithstanding the origin of
the dispute and the fact that a criminal court had jurisdiction.
29. The Government alleged that, since the applicant had failed to
lodge any claim for compensation, no dispute could be said to have
arisen. In any event - the Government further submitted - the
non-contractual liability of the State in respect of acts carried out
iure imperii is distinguishable from the system that governs
civil liability in private law. A major difference is that a claimable
right to compensation, enforceable in civil courts, only arises after
the criminal court has recognised its existence. In so doing,
criminal courts enjoy absolute discretion. At the procedural stage to
which the applicant was referring there was therefore no "civil right"
as such.
30. According to the principles laid down in its case-law
(see, amongst other authorities, the judgments of Zander v. Sweden,
25 November 1993, Series A no. 279-B, p. 38, para. 22, and
Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, para. 32),
the Court must ascertain, in particular, whether there was a dispute
("contestation") over a "right" which can be said, at least on arguable
grounds, to be recognised under domestic law, and whether the outcome
of the proceedings at issue was directly decisive for the right in
question.
31. As to the Government's allegation that no claim for
compensation was ever lodged, the Court fails to see what useful
purpose such a procedural action would have served given the
army tribunals' proprio motu rulings and their final character.
There was thus a "dispute" for the purposes of Article 6
para. 1 (art. 6-1).
32. The Court further observes that, regardless of its
characterisation under domestic law, Article 533 para. 2 of the
Code of Criminal Procedure creates a right for a person having been
detained to claim compensation following his or her acquittal
(see paragraph 22 above). However, the first paragraph of Article 535
(ibid.) excludes from compensation situations where it is established
that the detained person was "intentionally or by gross negligence"
responsible for his own detention. Lastly, under Article 536 para. 2
(ibid.) decisions regarding the obligation of the State to pay
compensation cannot be challenged separately.
33. Given the succinct rulings whereby the army tribunals of Athens
and Salonika held that "no compensation should be granted to the
applicant for his detention pending trial, because his detention was
due to his own gross negligence" (see paragraphs 14 and 18 above), it
cannot be denied that the outcome of the Article 533 proceedings was
directly decisive for establishing the applicant's right to
compensation.
34. It remains to be established whether such a right can be
considered a "civil" right, as pleaded by the applicant.
In this respect, the Court recalls that the concept of
"civil rights and obligations" is not to be interpreted solely by
reference to the respondent State's domestic law and that Article 6
para. 1 (art. 6-1) applies irrespective of the status of the parties,
as of the character of the legislation which governs how the dispute
is to be determined and the character of the authority which is
invested with jurisdiction in the matter (see, among other authorities,
the Baraona v. Portugal judgment of 8 July 1987, Series A no. 122,
p. 18, para. 42).
35. The Court notes that although the prerequisite for the
operation of Article 533 of the Code of Criminal Procedure, that is
detention followed by an acquittal, concerns public-law issues, the
right to compensation created by that provision is, by its very nature,
of a civil character ("de caractère civil"). Its typically private-law
features - which have not been contested by the Government - confirm
this conclusion as does the fact that it is for the civil courts to
decide on the precise amount of the compensation to be granted
(see paragraph 22 above).
36. Against this background, the Court concludes that the question
of the application of Article 533 to the applicant's case fell within
the ambit of Article 6 para. 1 of the Convention (art. 6-1).
B. Compliance with Article 6 para. 1 (art. 6-1)
37. The applicant complained that he was not given a chance to be
heard in the matter of compensation for his detention: the issue of the
State's liability was examined proprio motu by the military courts
together with the question of guilt. The applicant also alleged that
an additional breach of Article 6 para. 1 (art. 6-1) was committed by
the military tribunals' failure to provide adequate reasons for their
decisions.
38. The Commission noted that it had not been established in an
unequivocal manner that the applicant had waived his right to be heard,
and agreed that the requirements of Article 6 para. 1 (art. 6-1) had
not been complied with.
39. The Government submitted that since the applicant had not filed
any claim for compensation, no argument was to be heard and no
allegation to be refuted in a reasoned decision. Article 6 para. 1
(art. 6-1) had therefore not been breached.
40. The Court is of a different view. No decision on the question
of compensation should have been taken without affording the applicant
an opportunity to submit to the courts his arguments on the matter.
A procedure whereby civil rights are determined without ever hearing
the parties' submissions cannot be considered to be compatible with
Article 6 para. 1 (art. 6-1). In addition, the permanent
army tribunals' rulings proprio motu on the question of compensation
effectively precluded the applicant from making an application himself
(see paragraph 22 above). Moreover, it was not open to him to
challenge these rulings (ibid.).
41. As to the alleged lack of adequate reasons in the decisions of
the military tribunals, it is to be noted that, in discarding the
State's liability for the applicant's detention, the domestic courts
referred to the applicant's own "gross negligence". In doing so, they
repeated the wording of Article 533 para. 2 (see paragraph 22 above).
42. The Court recalls that the extent to which a court's duty to
give reasons applies may vary according, inter alia, to the nature of
the decision. Whether a court has failed to fulfil the obligation to
state reasons, deriving from Article 6 of the Convention (art. 6), can
only be determined in the light of the circumstances of the case
(see the Ruiz Torija v. Spain judgment of 9 December 1994, Series A
no. 303-A, p. 12, para. 29).
43. In the present case, the domestic courts decided to rule out
the State's liability for the applicant's detention on account of his
own "gross negligence". The lack of precision of this concept, which
involves an assessment of questions of fact, required that the courts
give more detailed reasons, particularly since their finding was
decisive for the applicant's right to compensation.
The Court therefore concludes that for this reason too there
has been a violation of Article 6 para. 1 (art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
44. The applicant complained that since the decisions of the
military tribunals concerning compensation could not be challenged no
effective remedy under national law for the violation of his rights
under the Convention was available to him. In his submission, this was
in breach of Article 13 of the Convention (art. 13), which reads:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
45. In view of its findings concerning Article 6 para. 1 of the
Convention (art. 6-1), the Court does not consider it necessary to
examine the case under Article 13 (art. 13).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
46. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
47. Mr Georgiadis sought compensation in the amount of
18,000,000 drachmas (GRD).
48. For the Government the claim was unjustified and unsupported
by any evidence of damage. An award of GRD 600,000 should be
sufficient to cover both damage and costs in this case and in the case
of Tsirlis and Kouloumpas v. Greece, which were pleaded jointly
(see paragraph 3 above).
49. The Court notes that Mr Georgiadis' complaint under Article 5
para. 1 (art. 5-1) was not declared admissible by the Commission
(see paragraph 24 above). The Court's finding of a violation in this
respect is limited to his complaint under Article 6 para. 1 (art. 6-1)
that, upon acquittal, he did not have a fair hearing in the matter of
compensation for his detention.
In so far as his claim for just satisfaction concerns pecuniary
damage, the Court cannot speculate as to the outcome of the
compensation proceedings had he benefited from all the safeguards
enshrined in Article 6 (art. 6). The claim must therefore be rejected.
As to any possible non-pecuniary damage sustained, the Court
considers that the present judgment in itself constitutes sufficient
just satisfaction.
B. Costs and expenses
50. The applicant claimed a total of GRD 4,650,000 in respect of
legal costs and expenses incurred both in the domestic proceedings and
before the Convention institutions.
51. The Government found the sum excessive, whereas the Delegate
of the Commission left the matter to the Court's discretion.
52. The Court, making an equitable assessment as required by
Article 50 (art. 50), awards the applicant GRD 750,000 in respect of
costs and expenses.
C. Default interest
53. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of adoption
of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1);
2. Holds that it is not necessary to examine the applicant's
complaint under Article 13 of the Convention (art. 13);
3. Holds that this judgment constitutes sufficient just
satisfaction for any non-pecuniary damage sustained;
4. Holds
(a) that the respondent State is to pay to the applicant, in
respect of costs and expenses, within three months,
750,000 (seven hundred and fifty thousand) drachmas;
(b) that simple interest at an annual rate of 6% shall be
payable from the expiry of the above-mentioned three months
until settlement;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 29 May 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar