CEDH · CASELAW;REPORTS;ENG — 7 mars 1996

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                        Application No. 19233/91                            Dimitrios Tsirlis                                 against                                 Greece                                   and                        Application No. 19234/91                          Timotheos Kouloumpas                                 against                                 Greece                        REPORT OF THE COMMISSION                      (adopted on 7 March 1996)                            TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-12) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13-17). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 18-62) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 18-53). . . . . . . . . . . . . . . . . . .3             Application No. 19233/91           (paras. 18-36). . . . . . . . . . . . . . . . . . .3             Application No. 19234/91           (paras. 37-53). . . . . . . . . . . . . . . . . . .6        B.    Relevant domestic law           (paras. 54-62). . . . . . . . . . . . . . . . . . .8     III. OPINION OF THE COMMISSION      (paras. 63-137). . . . . . . . . . . . . . . . . . . . 11        A.    Issues declared admissible           (para. 63). . . . . . . . . . . . . . . . . . . . 11        B.    Points at issue           (para. 64). . . . . . . . . . . . . . . . . . . . 11        C.    As regards Article 5 para. 1 of the Convention           (paras. 65-77). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 78). . . . . . . . . . . . . . . . . . . . 14        D.    As regards Article 5 para. 5 of the Convention           (paras. 79-82). . . . . . . . . . . . . . . . . . 14             CONCLUSION           (para. 83). . . . . . . . . . . . . . . . . . . . 15        E.    As regards Article 6 para. 1 of the Convention           (paras. 84-106) . . . . . . . . . . . . . . . . . 15        1.    The applicability of Article 6 para. 1 of the Convention           (paras. 85-93). . . . . . . . . . . . . . . . . . 15                            TABLE OF CONTENTS                                                             Page          2.    Compliance with Article 6 para. 1 of the Convention           (paras. 94-106) . . . . . . . . . . . . . . . . . 17             CONCLUSION           (para. 107) . . . . . . . . . . . . . . . . . . . 19        F.    As regards Article 13 of the Convention           (paras. 108-110). . . . . . . . . . . . . . . . . 19             CONCLUSION           (para. 111) . . . . . . . . . . . . . . . . . . . 19        G.    As regards Article 14 in conjunction with           Article 9 of the Convention           (paras. 112-119). . . . . . . . . . . . . . . . . 19             CONCLUSION           (para. 120) . . . . . . . . . . . . . . . . . . . 21        H.    As regards Article 9 of the Convention           (paras. 121-124). . . . . . . . . . . . . . . . . 21             CONCLUSION           (para. 125) . . . . . . . . . . . . . . . . . . . 22        I.    As regards Article 3 of the Convention           (paras. 126-129). . . . . . . . . . . . . . . . . 22             CONCLUSION           (para. 130) . . . . . . . . . . . . . . . . . . . 22        J.    Recapitulation           (para. 131-137) . . . . . . . . . . . . . . . . . 23     SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL, JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI. 24     PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . 25   PARTIALLY DISSENTING OPINION OF MR. G. RESS . . . . . . . . 26   APPENDIX I:     DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY                OF THE APPLICATION No. 19233/91. . . . . . . 28     APPENDIX II:    DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY                OF THE APPLICATION No. 19234/94. . . . . . . 42     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicants are Greek citizens, both born in 1964 and resident in Thiva. They were represented before the Commission by Mr. P. Bitsaxis, an attorney at law practising in Athens.   3.    The applications are directed against Greece.   The respondent Government were represented by their Agent, Mr. L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr. Ph. Georgakopoulos, Deputy Member (Paredros) of the Legal Advisory Council of the State, and Mrs. Ch. Sitara, Assistant Member (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns the military authorities' refusal to recognise that the applicants were ministers of a known religion, the applicants' imprisonment following a first instance conviction which was quashed on appeal, the failure of the military courts to grant the applicants compensation for the period they spent in detention and   the fairness of the proceedings relating to the applicants' compensation claim. The applicants invoke Articles 3, 5, 6, 9, 13 and 14 of the Convention.   B.    The proceedings   5.    Both applications were introduced on 26 November 1991 and registered on 19 December 1991.   6.    On 30 August 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on their admissibility and merits.   7.    The Government's observations were submitted on 13 December 1993 after an extension of the time-limit fixed for this purpose.   The applicants replied on 24 February 1994.   8.    On 29 November 1994 the Commission decided to invite the respondent Government to submit additional observations on both applicants'   complaints under Articles 3, 9 and 14 of the Convention.   9.    The Government's additional observations were submitted on 27 February 1995. The applicants replied on 2 May 1995.   10.   On 4 September 1995 the Commission declared inadmissible the applicants' complaints under Article 5 para. 1 (c) and 7 of the Convention. It declared admissible the remainder of the applications. It also decided to join the two applications.   11.   The text of the Commission's decision on admissibility was sent to the parties on 14 September 1995 and they were invited to submit such further information or observations on the merits as they wished. No further submissions were received from the parties.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   13.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL   14.   The text of this Report was adopted on 7 March 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   16.   The Commission's decision on the admissibility of the first application is attached hereto as Appendix I and the Commission's decision on the admissibility of the second application is attached hereto as Appendix II.   17.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   Application No. 19233/91   18.   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.   19.   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.   20.   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.   21.   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".   22.   On 30 April 1990 the Permanent Military Court (Stratodikio) of Chania, composed of two officers with legal training and three other officers, examined the criminal charges against the applicant. The applicant claimed that he was innocent on the ground that he was a minister of a known religion exempted from military service. At the end of the hearing the president of the court put the following question to its members:        "Is (the applicant), who is a Jehovah's Witness, 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?"   The court, unanimously, answered the question in the affirmative, found the applicant guilty of insubordination and sentenced him to four years' imprisonment from which it deducted the period the applicant had spent in provisional detention.   23.   On 4 May 1990 the applicant appealed against this decision before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).   24.   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.   25.   On 19 June 1990 the applicant's appeal came up for hearing before the Courts-Martial Appeal Court, being a court composed of five military officers with legal training. 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.   26.   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.   27.   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 No. 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 No. 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 .... ?"   28.   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.   29.   On 16 April 1991 the applicant's appeal came up for hearing for the third time before the Courts-Martial Appeal Court. A hearing had been fixed on the same day 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.   30.   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.   31.   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.   32.   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.   33.   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.   34.   On 30 May 1991 the Courts-Martial Appeal Court, composed of five military judges, examined 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?"   35.   Having heard the evidence and the submissions of the parties on the question of the applicant's guilt, the court withdrew for deliberations. After the deliberations the president announced the verdict. The applicant was acquitted, by three votes to two, on the ground that "there was no act". The dissenting judges considered that "the accused (was) not a religious minister". The following order was joined to and read out together with the court's verdict: "The State is under no obligation to compensate the applicant   for his detention between 6 March 1990 and 29 May 1991, because this detention was due to the applicant's gross negligence".   36.   The applicant was immediately released from prison and was provisionally discharged from the armed forces on the basis that he was "a religious minister". Application No. 19234/91   37.   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.   38.   On 29 November 1989 the applicant lodged an application with the Recruitment Office of Patras 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 1   March 1990 the Patras Recruitment Office rejected the application on the ground that Jehovah's Witnesses were not a "known religion". The applicant lodged immediately an administrative appeal to the Director for Recruitment of the General Headquarters for National Defence.   39.   While his administrative appeal was pending, the applicant was ordered by the Recruitment Office of Patras to report for duty at a military training centre in Sparta on 6 March 1990. The applicant presented himself at the Sparta 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.   40.   On 6 April 1990 the Director for Recruitment of the General Headquarters for National Defence rejected the applicant's appeal against the decision of the Patras Recruitment Office on the ground that Jehovah's Witnesses were not a known religion.   41.   On 21 May 1990 the applicant lodged before the Council of State (Simvulio tis Epikratias) an action for the annulment of the decision of 6 April 1990 of the Director for Recruitment of the General Headquarters for National Defence.   42.   On 30 May 1990 the Permanent Military Court (Stratodikio) of Athens, composed of one officer with legal training and four other officers, examined the criminal charges against the applicant. The applicant claimed that he was innocent on the gerund that he was a minister of a known religion exempted form military service. At the end of the hearing the president of the court put the following question to its members:        "Is (the applicant), who is a Jehovah's Witness, 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?"   The court, unanimously, answered the question in the affirmative, found the applicant guilty of insubordination and sentenced him to four years' imprisonment from which it deducted the period the applicant had spent in provisional detention.   43.   On 1 June 1990 the applicant appealed against this decision before the Courts-Martial Appeal Court (Anatheoritiko Dikastirio).   44.   On 12 July 1990 the applicant's appeal came up for hearing before the Courts-Martial Appeal Court, being a court composed of five officers with legal training. 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 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 copies of certain documents of the Ministry of Education and the Holy Synod of the Orthodox Church of Greece which had been relied on by the army authorities to refuse the applicant's application for exemption from military service. The court further agreed with the view of both the prosecution and the defence that the applicant should not be provisionally released under Article 352 para. 3 of the Code of Criminal Procedure.   45.   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.   46.   On 27 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 No. 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 No. 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 ... ?"   47.   The Public Prosecutor further proposed that the applicant's provisional detention should be continued. The defence requested either the continuation of the proceedings or the adjournment of the hearing to a date fixed by the court. It also requested the applicant's provisional release. The court granted the prosecution's request and agreed with its proposal that the applicant should not be released provisionally under Article 352 para. 3 of the Code of Criminal Procedure.   48.   On 7 March 1991 the applicant's appeal came up for hearing for the third time before the Courts-Martial Appeal Court. The Public Prosecutor proposed the adjournment of the hearing on the ground that the Director for Recruitment of the General Headquarters for National Defence should give his opinion on the following matter: "Is the accused already exempted from the obligation to perform military service in view of the action he has lodged with the Council of State?" He also proposed the continuation of the applicant's detention. The court accepted both proposals, despite the fact that they had been opposed by the defence.   49.   On 24 April 1991 the Council of State annulled the decision 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.   50.   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 General Headquarters for National Defence.   51.   On 29 May 1991 the Courts-Martial Appeal Court, composed of five military judges,   examined the applicant's appeal against the judgment of 30 May 1990 of the Permanent Military Court of Athens. 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?"   52.   Having heard the evidence and the submissions of the parties on the question of the applicant's guilt, the court withdrew for deliberations. After the deliberations the president announced the verdict. The applicant was acquitted, by three votes to two, on the ground that "there was no act". The dissenting judges considered that "the accused (was) not a religious minister". The following order was joined to and read out together with the court's verdict: "The State is under no obligation to compensate the applicant   for his detention between 6 March 1990 and 29 May 1991, because this detention was due to the applicant's gross negligence".   53.   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   54.   Article 5 of Law 1763/1988 exempts all ministers of "known religions" from military service.   55.   The Council of State has repeatedly considered that Jehovah's Witnesses are a "known" religion, in that their beliefs and manner of worship are known and not secret (decisions Nos. 2105 and 2106/75, 4635/77, 2484/80, 4620/85, 790/86 and 3533/86). In its decision No. 3601/90 the Council of State expressly upheld the right of Jehovah's Witnesses religious ministers to be exempted from military service.   56.   Article 70 of the Army Criminal Code provides the following:        "A member of the armed forces who refuses .... to obey an      order by his superior to perform one of his duties is      punished ...".     57.   On 16 March 1992 the Permanent Military Court of Athens considered that a Jehovah's Witnesses religious minister who had refused to pick up military clothing when first called upon to enlist in the army was not guilty of insubordination. The court considered that here had been no act of insubordination because he had no obligation to perform military service being a minister of a known religion.   58.   Article 303A para. 2 of the Army Criminal Code provides the following:        "In all cases, even if the investigation has been concluded      and until the final decision of the first instance court,      the duration of the provisional detention of a person      accused of felony cannot exceed twelve months. In very      exceptional cases, the above upper limit may be extended by      up to six months by decision of the indictments' chamber      ..."   59.   Article 407 para. 1 of the Army Criminal Code provides the following:        "The lodging of an appeal, which complies with the      requirements of law, suspends the enforcement of the      relevant court decision only insofar as the latter imposes      the penalties of death, cashiering and reduction in or      falling from rank. A person who has received a penalty not      exceeding one year's imprisonment may apply ... for the      suspension of the enforcement of the relevant court      decision, pending the outcome of his appeal".   60.   Article 434 of the Army Criminal Code provides that, if the Army Criminal Code does not regulate a procedural issue, the Code of Criminal Procedure applies.   61.   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 ...".   62.   The Code of Criminal Procedure provides as follows:        Article 533 para. 2        "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        "The 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        "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        "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        "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."        Article 540 para. 1        "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 ...".       III. OPINION OF THE COMMISSION   A.    Issues declared admissible   63.   The Commission has declared admissible the applicants' complaints concerning the lawfulness of their detention after conviction; the refusal of the military court of appeal to grant them compensation in respect of their detention without a hearing; inhuman and degrading treatment; violations of their freedom of religion; and discrimination. It also declared admissible the issue arising from the manner in which the decisions of the appeal court on the applicants' entitlement to compensation were reasoned.   B.    Points at issue   64.   The issues to be determined are the following:   -     Did the applicants' detention after conviction at first instance      constitute a violation of Article 5 para. 1 (Art. 5-1) of the      Convention?   -     Did the failure of the military court of appeal to grant the      applicants compensation for the period they spent in detention      amount to a violation of Article 5 para. 5 (Art. 5-5) of the      Convention?   -     Did the military court's refusal of compensation give rise to a      violation of the applicants' right to a fair hearing under      Article 6 para. 1 (Art. 6-1) of the Convention?   -     Did the applicants have an effective remedy under Article 13      (Art. 13) of the Convention for the alleged violation of their      right to a fair hearing?   -     Were the applicants subjected to discrimination in the enjoyment      of their right to freedom of religion contrary to Article 14 in      conjunction with Article 9 (Art. 14+9) of the Convention?   -     Was there a violation of the applicants' right to freedom of      religion under Article 9 (Art. 9) of the Convention?   -     Were the applicants subjected to inhuman and degrading treatment      contrary to Article 3 (Art. 3) of the Convention?   C.    As regards Article 5 para. 1 (Art. 5-1) of the Convention   65.   Article 5 para. 1 (Art. 5-1) 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 ......."   66.   The first applicant complains that 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. The same complaint is raised by the second applicant in respect of his detention between 30 May 1990 and 29 May 1991. The applicants submit that their convictions by the Permanent Military Courts of Chania and Athens were "totally arbitrary" and "not founded on the law", since it was clear from the outset of the proceedings that they were not liable for military service. Contrary to what the respondent Government argue, their convictions were the direct result of the refusal of the military courts 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 No. 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.   67.   The Government submit that there was no violation of Article 5 para. 1 (a) (Art. 5-1,-a). The applicants were detained because they were convicted by competent courts. The offence of insubordination is committed when a member of the armed forces refuses to comply with an order given by one of his hierarchical superiors. The order does not have to be lawful. The applicants committed the offence when they refused to obey the order to wear a military uniform. The military courts which convicted them could not take into account any other facts or considerations.   68.   The Commission notes that the appeal court, when adjourning the examination of the applicants' appeals, considered the possibility of ordering the applicants' release under Article 352 para. 3 of the Code of Criminal Procedure, which makes reference to persons detained on remand. Nevertheless, the Commission is satisfied that, in accordance with domestic law, in proceedings before military courts the accused's provisional detention is terminated upon pronouncement of the decision of the first instance court. This is not contested by the respondent Government who submit that the basis under domestic law for the first applicant's detention between   30 April 1990 and 30 May 1991 and for the second applicant's detention between 30 May 1990 and 29 May 1991 was their first instance conviction for insubordination. It follows that the "lawfulness" of the above-mentioned periods of detention must be examined under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.     69.   The Commission further notes that both applicants' convictions were quashed on appeal and recalls in this connection that it has held that a national court's decision setting aside a conviction does not retroactively affect under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention the "lawfulness" of the detention following that conviction (see Krzycki v. FRG, Comm. Report 9.3.78, D.R. 13 p. 57, with further references).     The Commission has also held that a person's detention may be "lawful" even if the court which convicted this person committed errors in applying domestic law (ibid). However, it has not excluded that there might be cases where a different conclusion is warranted (see No. 6694/74, Dec. 1.3.77, D.R. 8 p. 73).   70.   Moreover, in accordance with the case-law of the European Court of Human Rights, "if detention is to be lawful .... it must essentially comply with national law and the substantive and procedural rules thereof (see, in the context of Article 5 para. 1 (e) (Art. 5-1,-e), Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 21, para. 63; similar criteria were applied to detention within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 22, para. 41). Moreover, "the Convention imposes requirements over and above the substantive and procedural rules of national law in ascertaining the compatibility of deprivation of liberty with Article 5 (Art. 5), namely that the individual     should be protected from arbitrariness" (see, in the context of Article 5 para. 1 (a) and (b) (Art. 5-1,a,-b), Benham v. United Kingdom, Comm. Report 29.11.94, para. 49, unpublished, with referen