CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 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 }    Application No. 24120/94                     Application No. 25506/94 by Georgios PETROU                           by Omiros KONSTANTINOU against Cyprus                               against Cyprus         The European Commission of Human Rights sitting in private on 27 november 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 applications introduced on 5 April 1994 and 10 October 1994 by Georgiou PETROU and Omiros KONSTANTINOU against Cyprus and registered on 11 May 1994 and 27 October 1994 under file No. 24120/94 and No. 25506/94 ;         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 observations submitted by the respondent Government on 19 and       27 April and 9 August 1995 and the observations in reply       submitted by the applicants on 13 and 22 June 1995;         Having deliberated;         Decides as follows:   THE FACTS         The first applicant is a Cypriot citizen, born in 1966 and resident in Nicosia. The second applicant is a Cypriot citizen, born in 1955 and resident in Limassol. Before the Commission the applicants are represented by Mr. Panayotis Bitsaxis, an attorney-at-law practising in Athens.         The facts of the case, as submitted by the parties, may be summarised as follows.   1.     The particular circumstances of the case         Application No. 24120/94         The applicant is a Jehovah's Witness.         On 24 November 1983 the applicant received a draft order for military service with which he did not comply.         On 21 May 1984 the applicant was convicted of insubordination (anipotaxia) and sentenced to 15 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 21 May 1984 and 20 May 1985.         On 2 December 1985 the applicant received another draft order for military service. The applicant performed his military service between 8 January 1986 and 18 February 1987.         On 10 December 1987 the applicant received a draft order for an armed military drill with which he did not comply.         On 21 April 1988 the applicant was convicted of insubordination and sentenced to a fine of 30 Cypriot pounds by the Nicosia Military Court.         On 17 March 1989 the applicant received a draft order for another armed military drill with which he did not comply.         On 17 January 1990 the applicant was convicted of insubordination and sentenced to 2 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 17 January 1990 and 3 March 1990.         Between May 1989 and August 1990 the applicant received four draft orders for armed military drills with which he did not comply.         On 13 September 1990 the applicant was convicted of insubordination and sentenced to 3 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 13 September 1990 and 24 November 1990.         Between 25 July 1990 and 11 November 1991 the applicant received four draft orders for armed military drills with which he did not comply.         On 17 January 1992 Law No. 2/1992 recognised conscientious objection to the performance of military service, providing that conscripts who wish to be recognised as conscientious objectors must file an application to the competent Minister at least 30 days before the date of their enlistment.         Between 13 March 1992 and 29 April 1993 the applicant received four draft orders for armed military drills with which he did not comply. The applicant alleges that he had always received the draft orders too late, namely less than 30 days before his enlistment, and that, therefore, he did not have the opportunity of being recognised as a conscientious objector.         On 25 May 1993 the Department of Welfare of the Republic of Cyprus (Tmima Evimerias tis Kipriakis Dimokratias) prepared a "social report" (kinoniki ekthesi) concerning the personality of the applicant, his private and family life. The applicant refused to co-operate in the preparation of that report.         On 1 July 1993 the applicant was convicted of insubordination to the eight draft orders he had received between 25 July 1990 and 29 April 1993, and sentenced to 6 months' imprisonment by the Nicosia Military Court.         On 9 July 1993 the applicant lodged an appeal against the said sentence before the Supreme Court (Anotato Dikastirio) of Cyprus. He pleaded guilty of the offence of insubordination with which he had been charged but stressed that he is a conscientious objector and argued on the provisions and meaning of Article 10 of the Cypriot Constitution which is similar to Article 4 of the Convention.         On 16 November 1993 the Supreme Court of Cyprus ordered the applicant's release from prison on the ground that the sentence imposed was "excessive". It also found that the applicant had refused to comply with Law No. 2/1992.         Between 2 November 1993 and 25 February 1995 the applicant received three draft orders for armed military drills with which he did not comply.         Application No. 25506/94         The applicant served his military service between 1973 and 1976.         Since 1982 the applicant is a Jehovah's Witness.         In 1983 the applicant received a draft order for an armed military drill with which he did not comply.         On 15 November 1983 the applicant was convicted of insubordination (anipotaxia) and sentenced to 3 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 15 November 1983 and 31 December 1983.         Between January and March 1984 the applicant received four draft orders for armed military drills with which he did not comply.         On 8 March 1984 the applicant was convicted of insubordination and sentenced to 8 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 8 March 1984 and 20 September 1984.         Between September 1984 and June 1991 the applicant received three draft orders for armed military drills with which he did not comply.         On 2 July 1991 the applicant was convicted of insubordination and sentenced to 2 months' imprisonment by the Nicosia Military Court. The applicant served his prison sentence between 2 July 1991 and 20 August 1991.         Between January 1992 and April 1994 the applicant received eight draft orders for armed military drills with which he did not comply. The applicant alleges that he has always received the draft orders too late, namely less than 30 days before his enlistment, and that, therefore, he did not have the opportunity of being recognised as a conscientious objector (see below in "Relevant domestic law").         On 13 April 1994 the applicant was convicted of insubordination and sentenced to 6 months' imprisonment by the Nicosia Military Court.         On 19 April 1994 the applicant lodged an appeal against his conviction and sentence before the Supreme Court (Anotato Dikastirio) of Cyprus. He stressed that he is a conscientious objector and argued on the contents and meaning of Article 10 of the Cypriot Constitution which is similar to Article 4 of the Convention.         On 29 July 1994 the Supreme Court of Cyprus rejected the applicant's appeal but ordered his release from prison on the ground that the inflicted sentence was "excessive". It also found that the applicant had refused to comply with Law No. 2/1992.   2.     Relevant domestic law   A.     Article 10 of the Cypriot Constitution reads as follows:         "1.   No one shall be held in slavery or servitude.         2.    No one shall be required to perform forced or compulsory       labour.         3.    For the purpose of this Article the term "forced or       compulsory labour" shall not include:              (...)              (b)    any service of a military character or, in case of                  conscientious objectors, provided that they have been                  recognised by law, service exacted instead of                  compulsory military service.              (...)"   B.     Article 12 of the Cypriot Constitution reads as follows:         "1.   No person shall be held guilty of any offence on account of       any act or omission which did not constitute an offence under the       law at the time when it was committed (...).         2.    A person who has been acquitted or convicted of an offence       shall not be tried again for the same offence. No person shall       be punished twice for the same act or omission except where death       ensues from such act or omission.         (...)"   C.     Article 18 para. 1 of the Cypriot Constitution reads as follows:         "Every person has the right to freedom of thought, conscience       and religion."   D.     According to Article 22 of National Guard Law codified on 15 September 1984 (Article 8 of Law No. 22/1978), "any person who being liable to do so ... refuses to present himself or does not comply with any draft order ... is guilty of an offence and liable to an imprisonment not exceeding two years and/or to a fine not exceeding £500".   E.     On 17 January 1992 Law No. 2/1992 recognised conscientious objection to the performance of military service, providing that conscripts who wish to be recognised as conscientious objectors must file an application to the competent Minister at least 30 days before the date of their enlistment (Article 2, para. 3).   COMPLAINTS   1.     The applicants complain that the last five draft orders the first applicant received and the last eight draft orders the second applicant received amounted to compulsory labour in breach of Article 4 of the Convention. In this respect the applicants submit that they were compelled to military service in a country where conscientious objectors are recognised.   2.     The applicants complain that they were deprived of their liberty in breach of Article 5 para. 1 a) of the Convention. In this respect they submit that they are constantly under threat of punishment and that they were convicted several times for the same reason in breach of the principle of "ne bis in idem", guaranteed by Article 4 of Protocol No. 7.   3.     The applicants complain that on 1 July 1993 and 13 April 1994 respectively they were convicted for acts which, given the Law No. 2/1992, did no longer constitute a criminal offence under Cypriot law, in breach of Article 7 of the Convention.   4.     The first applicant alleges that the preparation of the "social report" concerning his personality amounts to a violation of his right to private and family life, in breach of Article 8 of the Convention.   5.     The applicants complain that the prosecutions and incarcerations to which they were subjected aimed at forcing them to alter the contents of their conscience and religion. They allege that their right to freedom of religion and conscience guaranteed by Article 9 para. 1 of the Convention has been violated.         The applicants further claim that the military authorities' insistence on prosecuting them amounts to degrading treatment prohibited by Article 3 of the Convention.         The applicants also submit that they were prevented from enjoying their private and family life in breach of Article 8 of the Convention. The first applicant also submits that he was prevented from finding an employment in breach of Article 1 of Protocol No. 1.         The applicants finally allege that they have been victims of discriminatory practice, singling out Jehovah's Witnesses, in breach of Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         Application No. 24120/94 was introduced on 5 April 1994 and registered on 11 May 1994. Application No. 25506/94 was introduced on 10 October 1994 and registered on 27 October 1994.         On 20 February 1995 the Commission decided to communicate the applications to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations on application No. 24120/94 were submitted on 27 April 1995 and those on application No. 25506/94 on 19 April 1995. On 9 August 1995 the Government submitted supplementary observations on application No. 25506/94. The first applicant replied on 22 June 1995 and the second applicant replied on 13 June 1995.         By letter dated 16 October 1995 the applicants' lawyer informed the Secretariat that after various discussions with the Cypriot authorities the applicants have decided to withdraw their applications.   REASONS FOR THE DECISION   1.     Having regard to the similar nature of the issues raised, the Commission decides to join the present applications under Rule 35 of its Rules of Procedure.   2.     On 16 October 1995 the applicants' lawyer informed the Secretariat that after various discussions with the Cypriot authorities the applicants have decided to withdraw their applications.         In these circumstances the Commission finds that the applicants no longer intend to pursue their applications. It further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the applications.         It follows that the applications may be struck off the list of cases pursuant to Article 30 para. 1 (a) of the Convention.         For these reasons, the Commission, unanimously,         DECIDES TO JOIN APPLICATIONS Nos. 24120/94 and 25506/94;         DECIDES TO STRIKE THE APPLICATIONS OUT OF THE LIST OF CASES.   Secretary to the Commission        President of the Commission       (H.C. KRÜGER)                        (S. TRECHSEL)