258 6.4.2000
Press release issued
by the Registrar
JUDGMENT IN THE CASE OF THLIMMENOS v.
GREECE
In a judgment delivered at
Strasbourg on 6 April 2000 in the case of Thlimmenos v. Greece, the
European Court of Human Rights held unanimously that there had been
a violation of Article 14 (prohibition of discrimination) in
connection with Article 9 (freedom of thought, conscience and
religion) and a violation of Article 6 § 1 (right to a hearing
within a reasonable time) of the European Convention on Human
Rights. Under Article 41 (just satisfaction) of the Convention, the
Court awarded the applicant 9,000,000 Greek drachmas for
non-pecuniary damage and for legal costs and expenses.
1. Principal
facts
The applicant, Iakovos Thlimmenos, a
Greek national, was born in 1955 and lives in Messinia
(Greece).
The applicant is a Jehovah’s Witness. On
9 December 1983 the Permanent Martial Court found him guilty of
insubordination for refusing to enlist in the army for religious
reasons. On February 1989 the executive board of the Greek chartered
accountants’ body refused to appoint him as a chartered accountant
because he had a criminal record, even though he had passed the
relevant qualifying exam. Mr. Thlimmenos appealed against this
decision, but his appeal was finally rejected on 28 June
1996.
Procedure and composition of
the Court
The application was lodged with the
European Commission of Human Rights on 18 December 1996. Having
declared the application partly admissible, the Commission adopted a
report on 4 December 1998 in which it expressed the opinion that
there had been a violation of Article 9 of the Convention in
conjunction with Article 14 (twenty two votes to six) and that there
had been a violation of Article 6 § 1 (unanimously). It referred the
case to the Court on 22 March 1999. Judgment was given by the Grand
Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss),
President,
Elisabeth Palm (Swedish),
Luigi Ferrari Bravo (Italian),
Lucius Caflisch (Swiss),
Jean-Paul Costa (French),
Willi Fuhrmann (Austrian),
Karel Jungwiert (Czech),
Marc Fischbach (Luxemburger),
Bostjan Zupancic (Slovenian),
Nina Vajic (Croatian),
John Hedigan (Irish),
Wilhelmina Thomassen (Dutch),
Margarita Tsatsa-Nikolovska
(FYROMacedonia),
Tudor Pantiru (Moldovan),
Egils Levits (Latvian),
Kristaq Traja (Albanian),
judges,
Georgios Koumantos (Greek), ad hoc judge,
and also Maud de Boer-Buquicchio, Deputy Registrar.
3. Summary of the
judgment
Complaints
The applicant complains of violations of
his right to freedom of religion, his right not to be subjected to
discrimination in this respect and the right to a hearing within a
reasonable time in the determination of his civil rights and
obligations guaranteed under Articles 9, 14 and 6 § 1 of the
Convention as well as of
the right to peaceful enjoyment of his
possessions guaranteed under Article 1 of Protocol No. 1.
Decision of the
Court
Scope of the
case
The Court had no jurisdiction to
entertain the applicant’s complaint under Article 1 of Protocol No.
1, which the Commission had declared inadmissible.
Government’s preliminary
objection
The applicant would not have obtained
full redress if he had had his conviction expunged from his criminal
record under a new procedure introduced by the law that recognized
the right to conscientious objection to military service. In any
event, the Government had not pleaded before the Commission that the
applicant could not claim to be a victim because he had not tried to
have his conviction expunged. As a result, they were stopped from
raising such an objection before the Court.
Article 14 taken in conjunction
with Article 9
The applicant was a member of the
Jehovah’s Witnesses, a religious group committed to pacifism, and
there was nothing to disprove his claim that he had refused to wear
the military uniform only because he considered that his religion
prevented him from doing so. The applicant’s complaint was that he
was treated as a person convicted of a felony for the purposes of an
appointment to a chartered accountant’s post despite the fact that
the offense for which he had been convicted was prompted by his
religious beliefs. This "set of facts" "fell within the ambit of a
Convention provision", namely Article 9. Article 14 therefore
entered into play.
The right not to be discriminated against
in the enjoyment of the rights guaranteed under the Convention was
also violated when States without an objective and reasonable
justification failed to treat differently persons whose situations
are significantly different.
States had a legitimate interest to
exclude some offenders from the profession of a chartered
accountant. However, unlike other convictions for serious criminal
offenses, a conviction for refusing on religious or philosophical
grounds to wear the military uniform could not imply any dishonesty
or moral turpitude likely to undermine the offender’s ability to
exercise this profession. Excluding the applicant on the ground that
he was an unfit person was not, therefore, justified. The applicant
had served a prison sentence for his refusal to wear the military
uniform. Imposing a further sanction on him was
disproportionate.
It followed that his exclusion from the
profession of chartered accountants did not pursue a legitimate aim.
There existed no objective and reasonable justification for not
treating the applicant differently from other persons convicted of a
felony. The State, in order to ensure respect for Article 14 taken
in conjunction with Article 9, should have introduced appropriate
exceptions to the rule barring persons convicted of a felony from
the profession of chartered accountants.
Article 9
It was not necessary also to consider
whether there had been a violation of Article 9 on its
own.
Article 6 § 1
Although regulated by administrative law,
the profession of chartered accountants was one of the liberal
professions in Greece. As a result, the proceedings instituted by
the applicant to challenge the authorities’ failure to appoint him
to a post of chartered accountant involved a determination
of
his civil rights within the meaning of
Article 6 § 1 of the Convention. The proceedings lasted seven years,
one month and twenty days. The applicant had not caused any delays.
Moreover, there were two periods of inactivity of a total duration
of almost three years, for which the Government could not offer any
explanation other than the Council of State’s case-load. Given that
it was for Contracting States to organize their legal systems in
such a way that their courts were able to guarantee the right of
everyone to obtain a final decision within a reasonable time and
that the proceedings concerned the applicant’s professional future,
the above length failed to meet the "reasonable time"
requirement.
Article 41
The applicant had not shown that the
income he would have earned as a chartered accountant would have
exceeded the income he had actually earned in private practice
during the relevant period of time. However, the applicant must have
suffered some non-pecuniary damage as a result of the violation of
his right under Article 6 § 1 to a hearing within a reasonable time
and of his right under Article 14 in conjunction with Article 9 to
be free from discrimination in the exercise of his freedom of
religion. The applicant was therefore awarded GRD 6,000,000 for
non-pecuniary damage and GRD 3,000,000 for costs and expenses.
The Court’s judgments are accessible
on its Internet site (http://www.echr.coe.int/
).
The European Court of Human Rights
was set up in Strasbourg in 1959 to deal with alleged violations of
the 1950 European Convention on Human Rights. On 1 November 1998 a
full-time Court was established, replacing the original two-tier
system of a part-time Commission and
Court. |