Government fails to seek the assistance of the National Commission for Human Rights in the drafting of a bill relating to the rights of conscientious objectors

During the drafting of a bill related to the rights of conscientious objectors and the procedure for recognising conscientious objectors, the Ministry of National Defence failed to seek the advice and assistance of the National Human Rights Commission, despite this being recommended good practice by the Council of Europe and the Regulatory Impact Analysis Manual for the legislative process.

More specifically, according to par. 8 of the Second Annex to Recommendation CM/Rec(2021), “Member States should ensure that NHRIs enjoy adequate access to information and to policy makers and legislators, including timely consultations on the human rights implications of draft legislation and policy strategies. NHRIs should also be consulted, in a timely manner, on draft legislation and policies that affect their mandate, independence and operation.” 

Furthermore, the Handbook on Regulatory Impact Assessment (p. 22) provides that a comprehensive assessment of the impact of a regulation requires the consultation of agencies or authorities with expertise in the specific subject matter of the proposed regulation. Indeed, in the relevant passage, the NCHR is explicitly mentioned as an example of such an authority.

Article 62 of the bill sought to amend pre-existing legislation concerning the composition of the special five-member committee that examines the applications of conscientious objectors and allocates accepted applications for alternative service options within public sector bodies, and as such dealt with issues affecting the rights of conscientious objectors; a subject which should have resulted in consultation with the NCHR. 

As the NCHR stated in a letter to the Minister of National Defence, Nikos Panagiotopoulos on 9 January 2023, they found out about the legislative initiative only when it was posted for public consultation on the website open gov. The National Committee points out that they have shown a sustained interest in matters relating to freedom of conscience, having in particular repeatedly addressed issues related to the performance of alternative service and the protection of the rights of conscientious objectors, and were therefore surprised that their opinion was not sought during the drafting process.

In addition to the failure of the Ministry of National Defence to consult the NCHR, the National Commission for Human Rights also pointed out that the content of the proposed Article 62 is potentially problematic with regard to the rule of law, as it modified the composition of the members of the special five-member committee examining the applications of conscientious objectors, reducing the number of professors of higher education institutions from three to two and increasing the number of army personnel from one to two.

“This amendment constitutes a serious legislative regression with regard to the issues of conscientious objectors”, noted the NCHR in its letter to the Minister of National Defence. The proposed changes to the composition of the committee essentially overturned the amendments to the committee introduced by Article 23(2) of Law 4609/2019, which was legislated as a result of the conviction of Greece by the European Court of Human Rights in the case Papavasilakis v. Greece, as well as decision 1318/2017 of the Council of State, which was explicitly mentioned in the explanatory memorandum of the bill. The convening of the Committee with a majority of military members, or an equal number of civilians/military members runs contrary to legal guidelines.  Therefore, the new bill which would return the committee to its original form, risks new convictions in international courts, and the resultant financial burden on the State in compensation (see also the Papavasilakis, Petromelidis cases, and the Thlimmenos case.) 

Against the background of the above, but also the repeated criticism of international organisations, the NCHR underlined that the competent authority for the recognition of a person as a conscientious objector must be independent and not include members of the military command, as is currently the case. However, rather than the Ministry of National Defence amending the legislation in this direction, in line with the recommendations of the relevant UN and Council of Europe monitoring bodies, the Ministry of National Defence proposed amending the legislation in the exact opposite direction.

It should be noted that these provisions of the proposed article 62 were not ultimately included in the final law 5018/2023 (Government Gazette Α’ 25/9.2.2023), following the NCHR’s public objections to these provisions, which precisely underlines the importance of consulting with expert organisations before legislating.