CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 19233/91                       by Dimitrios TSIRLIS                       against Greece         The European Commission of Human Rights sitting in private on 4 September 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  P. LORENZEN              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 November 1991 by Dimitrios TSIRLIS against Greece and registered on 19 December 1991 under file No. 19233/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the Commission's decision of 30 August 1993 to communicate the       application,   -      the observations submitted by the respondent Government on       13 December 1993 and the observations in reply submitted by the       applicant on 24 February 1994,   -      the Commission's decision of 29 November 1994 to communicate the       applicant's complaints under Articles 3, 9 and 14 of the       Convention,   -      the additional observations submitted by the respondent       Government on 27 February 1995 and the observations in reply       submitted by the applicant on 2 May 1995,         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Greek citizen, born in 1964, and is resident in Athens. Before the Commission he is represented by Mr P. Bitsaxis, an attorney at law practising in Athens.   A.     The particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows:         On 4 November 1987 the applicant was appointed religious minister by the Central Congregation of the Christian Jehovah's Witnesses of Greece. He was given the authority, inter alia, to perform wedding ceremonies between persons of this religion, in accordance with Article 1367 of the Civil Code, and to notify such weddings to the competent registry offices. By letter of 20 November 1987 the Prefecture of Eastern Attica notified the registry offices of Eastern Attica of this appointment.         On 13 February 1990 the applicant lodged an application with the Recruitment Office of Eastern Attica to be exempted from military service, in accordance with Article 5 of law 1763/1988 which grants such a right to all ministers of "known religions". On 28 February 1990 the Eastern Attica Military Office rejected the application on the ground that Jehovah's Witnesses were not a "known" religion. The applicant lodged immediately an administrative appeal with the Director for Recruitment of the General Headquarters for National Defence.         While his administrative appeal was pending, the applicant was ordered by the Recruitment Office of Eastern Attica to report for duty at a military training centre in Rethimno on 6 March 1990. The applicant presented himself at the Rethimno centre, as ordered, but refused to enlist, invoking his status of a minister of a known religion. More in particular, the applicant refused to wear a military uniform as ordered by a military officer. He was arrested, charged with insubordination and placed in detention on remand.         On 22 March 1990 the Director for Recruitment of the General Headquarters for National Defence rejected the applicant's appeal against the decision of the Eastern Attica Recruitment Office, on the ground that Jehovah's Witnesses were not a "known" religion.         On 30 April 1990, the Permanent Military Court (Stratodikio) of Chania found the applicant guilty of insubordination and sentenced him to four years' imprisonment. On 4 May 1990 the applicant appealed against this decision before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).         On 21 May 1990 the applicant lodged before the Council of State (Simvulio tis Epikratias) an action for the annulment of the decision of 22 March 1990 of the Director for Recruitment of the General Headquarters for National Defence.         On 19 June 1990 the applicant's appeal came up for hearing before the Courts-Martial Appeal Court. The defence requested the applicant's acquittal or, alternatively, the adjournment of the hearing pending the decision of the Council of State on his appeal. The defence also requested the applicant's provisional release under Article 352 para. 3 of the Code of Criminal Procedure. The court decided to adjourn the hearing to a date which would be fixed by the Public Prosecutor (Epitropos) in order to enable the latter to produce a copy of the applicant's original application for an exemption and of the final decision thereon of the Director for Recruitment of the General Headquarters for National Defence. It further considered that the applicant should not be provisionally released under Article 352 para. 3 of the Code of Criminal Procedure.         On 12 September 1990 the applicant requested the Council of State to order the suspension of the execution of the decision of the Director for Recruitment of the General Headquarters for National Defence refusing to exempt him from military service.         On 29 November 1990 the applicant's appeal came up again for hearing before the Courts-Martial Appeal Court. In the meantime the Fourth Chamber of the Council of State had issued decision 3601/90 in which the right of Jehovah's Witnesses religious ministers to be exempted from military service was expressly upheld. The Public Prosecutor requested the adjournment of the hearing to a date to be fixed by himself with a view to obtaining the opinion of the Director for Recruitment of the General Headquarters for National Defence on the following matter:         "Is the accused under an obligation to perform military       service in the light of decision 3601/90 of the Fourth       Chamber of the Council of State which quashed a decision of       the Director for Recruitment of the General Headquarters       for National Defence which had rejected an application for       exemption from military service lodged by another accused       person who was a religious minister of the Central       Congregation of the Christian Jehovah's Witnesses .... ?"         The Public Prosecutor further proposed that the applicant's provisional detention should be continued. The defence agreed to the adjournment of the hearing. It further considered that the question of the applicant's provisional release "should be left to the judgment of the court". The court granted the prosecution's request and agreed with its proposal that the applicant should not be provisionally released under Article 352 para. 3 of the Code of Criminal Procedure.         On 16 April 1991 the applicant's appeal came up for hearing for the third time before the Courts-Martial Appeal Court. On the same day a hearing had been fixed for the action the applicant had lodged before the Council of State for the annulment of the decision of 22 March 1990 of the Director for Recruitment of the General Headquarters for National Defence.         The Public Prosecutor of the Courts-Martial Appeal Court proposed the adjournment of the hearing of the applicant's criminal appeal, pending the decision of the Council of State. He also proposed the continuation of the applicant's detention. The defence considered that the first matter should be left to the judgment of the court. It requested, however, the applicant's provisional release.         The court decided to adjourn the hearing to a date to be fixed by the Public Prosecutor in order to obtain the opinion of the Director for Recruitment of the General Headquarters for National Defence on the following question: "Was the accused exempted from the obligation to report for duty, in the light of his purported status of a religious minister?" It further ordered the continuation of the applicant's provisional detention.         On 24 April 1991 the Council of State annulled the decision of the Director for Recruitment of the General Headquarters for National Defence by which the applicant's application for exemption had been refused, on the ground that Jehovah's Witnesses are a known religion and the administration had not challenged the evidence produced by the applicant that he was a minister of that religion.         On 8 May 1991 a three-member committee of the Council of State decided that, in the circumstances, there was no need to pronounce on the applicant's petition for the suspension of the execution of the above-mentioned decision of the Director for Recruitment of the General Headquarters for National Defence.         On 30 May 1991 the Courts-Martial Appeal Court, composed of five military judges, heard the applicant's appeal against the judgment of 30 April 1990 of the Permanent Military Court of Chania. The issue before the court, as formulated by its president, was the following:         "Is (the applicant), a member of the religious sect of       Jehovah's Witnesses, guilty of having refused to obey,       while serving in the military, an order given by his       commanding officer to perform a certain duty, i.e. to pick       up clothing articles necessary for his training as an       unarmed soldier, claiming that the religious convictions of       Jehovah's Witnesses do not permit him to do so?"         Three members answered the question in the negative. Two members considered that "the accused is not a religious minister". As a result, the applicant was acquitted on the basis that "there was no act". The Courts-Martial Appeal Court further decided that no compensation should be granted to the applicant for the time he spent in prison between 6 March 1990 and 29 May 1991, because his detention "was due to his gross negligence".         The applicant was immediately released from prison and was provisionally discharged from the armed forces on the basis that he was "a religious minister".   B.     Relevant domestic law and practice   1.     Article 5 of law 1763/1988 exempts all ministers of "known religions" from military service.         The Council of State has repeatedly considered that Jehovah's Witnesses are a known religion (decisions Nos 2105 and 2106/75, 4635/77, 2484/80, 4620/85, 790/86 and 3533/86). In its decision 3601/90 the Council of State expressly upheld the right of Jehovah's Witnesses religious ministers to be exempted from military service.   2.     Article 533 para. 2 of the Code of Criminal Procedure reads as follows:         "Persons who have been detained on remand and subsequently       acquitted .... have the right to request compensation ....,       if it has been established in the proceedings that they did       not commit the criminal offence for which they have been       detained on remand .... A person who has been detained       following conviction by (a) court should be considered for       the purposes of this article to be a person who has been       detained on remand, if his conviction is quashed following       an appeal."         Article 535 para. 1 of the same Code provides the following:         "(t)he State does not have any obligation to compensate a       person who ..... has been detained on remand if the latter,       intentionally or by gross negligence, was responsible for       his own detention."         Article 536 paras. 1 and 2 of the Code read as follows:         "Upon an application submitted orally by the person who has       been acquitted, the court which heard the case shall decide       on the State's obligation to pay compensation in a separate       decision issued at the same time as the verdict. However,       the court may also issue such a decision proprio motu       ........         The decision regarding the obligation of the State to pay       compensation cannot be challenged separately; it is,       however, quashed when the decision on the principal issue       of the criminal trial is reversed."         Article 537 paras. 1 and 2 of the Code read as follows:         "The person who has suffered prejudice may request       compensation at a later stage before the same court.         In these circumstances, the application must be submitted       to the public prosecutor of this court strictly within       forty-eight hours from the pronouncement of the judgment in       open court."         Article 539 para. 1 of the Code provides the following:         "After it has been decided that the State must pay       compensation, the person entitled thereto may bring his       claim before the civil courts, which may not re-examine the       existence of the State's obligation."         Finally, Article 540 para. 1 of the Code reads as follows:         "Persons who have been unfairly ..... detained on remand       must be compensated for any material prejudice they have       suffered as a result of their ...... detention. They must       also be compensated for moral damage .......".   3.     Article 352 para. 3 of the Code of Criminal Procedure provides the following:         "When the hearing is adjourned ...., the court may order,       ...., the provisional release of the accused ......".   COMPLAINTS   1.     The applicant complains under Article 5 para. 1 (c) of the Convention that his detention on remand was unlawful in that he could not have been reasonably suspected of committing the offence of insubordination.   2.     The applicant complains that his conviction by the Permanent Military Court of Chania was arbitrary. As a result, he was deprived of his liberty in breach of Article 5 para. 1 (a) of the Convention.   3.     The applicant complains under Article 5 para. 5 of the Convention that he did not receive compensation for having been unlawfully detained.   4.     The applicant complains that the Courts-Martial Appeal Court decided on his claim for compensation without hearing him in breach of Article 6 para. 1 of the Convention. He also complains that, as a result of the judgment of   the Courts-Martial Appeal Court, he was deprived of an effective remedy with regard to his compensation claim in breach of Article 13 of the Convention.   5.     The applicant complains that his conviction by the Permanent Military Court of Chania was arbitrary. As a result, Article 7 of the Convention was violated.   6.     When answering the Government's observations, the applicant further complained of a violation of Articles 3, 9 and 14 of the Convention. He claimed that he had been subjected to inhuman and degrading treatment   and that he had been prosecuted for his religious beliefs and deprived, during his detention, of every opportunity to perform his duties as a religious minister and practise his religion together with the other followers of his creed. He also claimed that the ministers of the Greek Orthodox Church were exempted from military service without difficulty.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 26 November 1991 and registered on 19 December 1991.         On 30 August 1993 the Commission decided to communicate the application to the respondent Government and to request them to submit their written observations on admissibility and merits.         The Government's observations were submitted on 13 December 1993 after an extension of the time-limit fixed for this purpose. On 24 February 1994 the applicant submitted his observations in reply, including new complaints under Articles 3, 9 and 14 of the Convention.         On 29 November 1994 the Commission decided to communicate these complaints to the Government.         The Government's additional observations were submitted on 27 February 1995. On 2 May 1995 the applicant submitted his observations in reply.   THE LAW   1.     The applicant complains under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention that his detention on remand between 6 March and 30 April 1990 was unlawful in that he could not have been reasonably suspected of committing the offence of insubordination.         Article 5 para. 1 (c) (Art. 5-1-c) of the Convention provides the following:         "Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the       following cases and in accordance with a procedure       prescribed by law:         .......              c.     the lawful arrest or detention of a person       effected for the purpose of bringing him before the       competent legal authority on reasonable suspicion of having       committed an offence or when it is reasonably considered       necessary to prevent his committing an offence or fleeing       after having done so ....."         As a preliminary point, the Government contend that the applicant failed to comply with the requirements of Article 26 (Art. 26) of the Convention, in that he did not request his provisional release from the competent military courts. The Government further submit that the applicant's complaints have not been submitted within the six months period provided for under Article 26 (Art. 26) of the Convention, which must be calculated from the date of his conviction. In any event, the Government claim that the applicant's complaints are manifestly ill- founded.         In response, the applicant argues that, as a matter of principle, an application for provisional release cannot be considered to be a remedy for the purposes of Article 26 (Art. 26) of the Convention. Moreover, in the circumstances of the particular case, such an application had no prospects of success, given the general stance of the military authorities and courts vis-à-vis the problem of conscientious objectors. The applicant further submits that the six months period can only be calculated from the date when his acquittal became final.         The Commission does not consider it necessary to examine whether the applicant's allegations disclose an appearance of a violation of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention. The Commission recalls that, under Article 26 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted.         It further recalls its case-law to the effect that a request for provisional release is in principle an effective remedy in the case of persons complaining under Article 5 para. 1 (c) (Art. 5-1-c) of their detention on remand (No. 21522/93, Dec. 10.10.94, unpublished and, mutatis mutandis, No. 9172/80, Dec. 17.12.81, D.R. 27 p. 222).         The Commission notes that the applicant never applied to the competent military criminal courts for temporary release after he had been placed in detention on remand.   Nor has he produced any evidence to the effect that such an application could not constitute, in the circumstances of his case, an effective remedy.         In these circumstances, the Commission considers that, insofar as his complaints regarding pre-trial detention are concerned, the applicant has not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention. It follows that this aspect of the case must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant complains that his conviction by the Permanent Military Court of Chania was arbitrary. As a result, his detention between 30 April 1990 and 30 May 1991 was not lawful within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.         Article 5 para. 1 (a) (Art. 5-1-a) of the Convention provides the following:         "Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the       following cases and in accordance with a procedure       prescribed by law:              a.     the lawful detention of a person after       conviction by a competent court ......."         The Government submit that the applicant's complaints under Article 5 para. 1 (a) (Art. 5-1-a) are manifestly ill-founded, because he was detained following a conviction by a competent court.         The Commission considers that the complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   3.     The applicant complains under Article 5 para. 5 (Art. 5-5) of the Convention that he did not receive compensation for having been unlawfully detained.         Article 5 para. 5 (Art. 5-5) of the Convention provides the following:         "Everyone who has been the victim of arrest or detention in       contravention of the provisions of this Article shall have       an enforceable right to compensation."         The Government submit that the applicant never requested compensation and, as a result, has not exhausted domestic remedies. They further contend that his detention was lawful under Article 5 para. 1 (Art. 5-1) of the Convention and he was in any event responsible for his detention, because he did not take timely action to obtain his exemption from military service. Although the applicant became a religious minister in November 1987, he did not apply for exemption before February 1990.         The applicant submits that his detention was clearly unlawful, that he has exhausted domestic remedies and that his right to ask for compensation was frustrated by the decision of the military court of appeal.         The Commission considers that the complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   4.     The applicant complains that the military courts' final rejection of his claim for compensation without hearing him was in breach of Articles 6 and 13 (Art. 6, 13) of the Convention. When communicating the application, the Commission also invited observations under Article 6 para. 1 (Art. 6-1) of the Convention in connection with the failure of the Courts-Martial Appeal Court to supply reasons for its decision that the detention was due to the applicant's gross negligence.         Article 6 para. 1 (Art. 6-1) of the Convention provides the following:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ..."         Article 13 (Art. 13) of the Convention provides the following:         "Everyone whose rights and freedoms as set forth in this       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."         The Government submit that the applicant has not complied with the requirements of Article 26 (Art. 26) of the Convention, because he never applied for compensation.         They further argue that Article 6 (Art. 6) of the Convention does not apply to the proceedings in question. The issue whether the applicant was entitled to compensation was not decided in accordance with the legal rules which govern the civil liability of the State in general, but in accordance with a special set of rules applying exclusively to detention ordered in the context of a criminal trial. In such cases compensation is granted independently of the illegal character of the detention and the guilt of the State organs involved. Furthermore, the applicable rules are of a public law character and the right to liberty is not a civil right within the meaning of Article 6 (Art. 6) of the Convention.       The Government finally argue that the courts did not hear the public prosecutor before deciding, proprio motu, not to grant the applicant compensation. The majority of the judges being ordinary officers, the military criminal courts which tried the applicant resemble jury courts which do not give reasons for their verdicts. As the applicant had not submitted any claim for compensation, there were no arguments to be refuted and there was, accordingly, no need for detailed reasons to be given.         The applicant submits that he has complied with the requirements of Article 26 (Art. 26) of the Convention. He observes in this connection that the Code of Criminal Procedure provides that an acquitted person may present his claim for compensation at the latest 48 hours after the decision of the criminal court. However, in casu the applicant claims that the military courts effectively prevented him from exercising his rights. The question of his entitlement to compensation was examined proprio motu in the course of the courts' deliberations on the question of his guilt. The applicant had not and could not have been heard at this stage of the proceedings on the issue of compensation. The courts, nevertheless, hastened to join their negative decision on this issue to their verdict on the merits which they pronounced immediately after they had concluded their deliberations.         The applicant further argues that the rules governing compensation for detention on remand are nothing else than the application of the general principles of civil liability in the particular context. Several elements point in this direction. Once the obligation of the State to compensate is recognised by the criminal court, it is a civil court which decides on the amount of compensation; the detainee's claim may be transferred, attached and inherited; it is subject to prescription; the detainee is compensated in respect of material and moral damage; persons depending on the detainee may sue as well; the State may in turn sue the civil servants who, acting illegally, became responsible for the detention.         Finally, the applicant submits that Article 6 (Art. 6) of the Convention has been violated in that he was never given the opportunity to be heard in connection with his right to compensation. Military courts in Greece, being composed of judges and lay officers, do not differ in any manner from other mixed criminal courts which give reasons for their decisions. Article 13 (Art. 13) of the Convention has also been violated in that he could not lodge an appeal against the decision of the military court which denied him compensation.         The Commission notes the parties' observations on the question of exhaustion of domestic remedies and, in particular, their disagreement as to whether the applicant had been given the chance to apply for compensation. It considers that this question is related to the substance of the applicant's complaints under Articles 6 and 13 (Art. 6, 13) of the Convention. However, these complaints raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   5.     The applicant complains that his conviction by the Permanent Military Court of Chania was arbitrary. As a result, Article 7 (Art. 7) of the Convention was violated.         Article 7 para. 1 (Art. 7-1) of the Convention provides the following:              "No one shall be held guilty of any criminal offence            on account of any act or omission which did not            constitute a criminal offence under national or            international law at the time when it was committed            ....".         The Government argue that the applicant cannot claim to be a victim of a violation of Article 7 (Art. 7), as he was acquitted and that, in any event, he had been convicted at first instance of a criminal offence which was provided for under domestic law.         The Commission notes that the applicant was finally acquitted. As a result, this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     The applicant complains that he was persecuted because of his religious beliefs, that he was deprived, during his detention, of every opportunity to perform his duties as a religious minister and practise his religion together with the other followers of his creed and that he was discriminated against since the ministers of the Greek Orthodox Church are exempted from military service without difficulty. He invokes Articles 3, 9 and 14 (Art. 3, 9, 14) of the Convention.         Article 9 (Art. 9) of the Convention provides the following:         "1.   Everyone has the right to freedom of thought,       conscience and religion; this right includes freedom to       change his religion or belief and freedom, either alone or       in community with others and in public or in private, to       manifest his religion or belief, in worship, teaching,       practice and observance.         2.    Freedom to manifest one's religion or beliefs shall be       subject only to such limitations as are prescribed by law       and are necessary in a democratic society in the interests       of public safety, for the protection of public order,       health or morals, or for the protection of the rights and       freedoms of others."         Article 14 (Art. 14) of the Convention provides the following:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         Article 3 (Art. 3) of the Convention provides the following:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The Government argue that the applicant has not exhausted domestic remedies and has not raised his complaints within the six months' period provided for in Article 26 (Art. 26) of the Convention.         Moreover, Article 9 (Art. 9) of the Convention does not require States to exempt religious ministers from military service. The applicant was imprisoned because he had committed the criminal offence of insubordination. Under Greek law the offence is committed when a member of the armed forces refuses to obey a superior's order. The applicant committed the offence when he refused to obey an officer's order to wear a military uniform. The court could not take into account any other facts or considerations.         The Government further argue that the applicant was not discriminated against on the basis of his religious beliefs. Domestic law provides for a number of grounds on the basis of which one may apply for exemption from military service. Unsuccessful applicants who refuse to enlist are always prosecuted.         Finally, the Government submit that it could not be argued that the applicant has been submitted to treatment contrary to Article 3 (Art. 3) of the Convention, given the requirements of this provision as to the level of severity.         The applicant argues that he has exhausted domestic remedies and that he has raised in essence his complaints within six months from the decision of the Courts-Martial Appeal Court which acquitted him. Contrary to what the respondent Government argue, his conviction was the direct result of the refusal of the military authorities to abide, initially, by the earlier case-law of the Council of State which recognised the status of Jehovah's Witnesses as a "known religion" and, later, by decision 3601/90 of the Council of State which expressly affirmed the right of the religious ministers of Jehovah's Witnesses to be exempted from military service. The treatment he was subjected to reached the threshold of severity required by Article 3 (Art. 3) of the Convention.         The Commission recalls that, in accordance with its case-law, domestic remedies have been exhausted if the applicant has submitted in substance his complaints before the national courts, even if he has not made particular reference to the Convention (Nos 7299/75 and 7496/76, Dec. 4.12.79, D.R. 18 p. 5). Moreover, the failure to respect the six month time-limit cannot be held against an applicant who, after its expiry, raised new complaints based on the facts which have been submitted within the time-limit (No. 12015/86, Dec. 6.7.88, D.R. 57 p. 108).         The Commission recalls its earlier finding that the applicant did not exhaust domestic remedies in respect of the period he spent in detention prior to the first instance judgment. It considers, however, that the same is not true for part of the period the applicant spent in detention after his conviction. The applicant appealed against his conviction and on 19 June 1990 and 16 April 1991 he requested the Court-Martial to order his provisional release, as he was entitled to by domestic law. He thus gave the national authorities the opportunity to redress the situation complained of. Moreover, although the applicant did not invoke expressly Articles 9 and 14 (Art. 9, 14) of the Convention before the Council of State and the military courts, he raised his complaints in substance. The gist of the applicant's argument before the domestic courts was that he should not have been treated differently from other religious ministers of known religions who were exempted from military service.         The Commission further notes that the applicant first referred to a violation of Articles 9 and 14 (Art. 9, 14) of the Convention in his letter of 24 February 1994 containing his observations in reply, i.e. more than six months after the date of the final decision complained of. However, the complaints under Articles 9 and 14 (Art. 9, 14) of the Convention are based on facts which have been submitted within the time-limit and form the core of the applicant's case.         In the light of all the above, the Commission does not consider that it is prevented, under Article 26 (Art. 26) of the Convention, from examining the supplementary complaints under Article 9 and 14 (Art. 9, 14) of the Convention submitted by the applicant in his observations in reply.         The Commission further considers that these complaints raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.         As regards, finally, the applicant's complaint under Article 3 (Art. 3) of the Convention, the Commission notes that it is based on the same facts as his complaints under Articles 9 and 14 (Art. 9, 14) of the Convention. It considers that these aspects of the application are closely linked together and that the complaint of Article 3 (Art. 3) of the Convention must be also examined on the merits.         For these reasons, the Commission, unanimously,         DECLARES INADMISSIBLE the applicant's complaints concerning       the lawfulness of his pre-trial detention and his right not       to be convicted on account of any act which did not       constitute a criminal offence under national or       international law at the time when it was committed and,         by a majority,         DECLARES ADMISSIBLE, without prejudging the merits of the       case, the remainder of the application.   Secretary to the Commission                  President of the Commission          (H.C. KRÜGER)                                (S. TRECHSEL)