FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32438/96 
by I.S. 
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 6 April 2000 as a Chamber composed of

Mr M. Pellonpää, President
 Mr A. Pastor Ridruejo, 
 Mr L. Caflisch, 
 Mr J. Makarczyk, 
 Mr V. Butkevych, 
 Mr J. Hedigan, 
 Mrs S. Botoucharova, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 5 July 1996 and registered on 29 July 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Bulgarian national born in 1975 and residing in Shoumen. Before the Court he is represented by Mrs Iordanka Vandova and Mrs Zdravka Kalaydjieva, lawyers practising in Sofia.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a Jehovah’s Witness. He first heard about Jehovah’s Witnesses and their religious doctrine in 1992, when he was in high school. He became interested and in August 1993 he was baptised as a Jehovah’s Witness. His mother also joined that religious community.

In the spring of 1994 the applicant was summoned for an examination by the Military Medical Committee (военно-медицинска комисия) in view of his forthcoming military service. The applicant appeared before the Committee and apparently underwent the necessary examination. He also explained that his beliefs were incompatible with military training and taking an oath.

On 22 September 1994 the applicant appeared at the Regional Military Office (военно окръжие) in Shoumen, in answer to a summons to receive an order for the commencement of his military service. The applicant refused to accept the order and asked to meet the commander of the Regional Military Office. At the meeting the applicant explained that his beliefs did not allow him to serve in the army. In response the commander offered him to perform his military service in the Civil Construction Military Forces (Строителни войски), or at a military hospital, as a medical orderly, or in a military unit as a cook. The applicant refused these proposals as what was offered remained a service for the benefit of the army. Also, it would have still been necessary to undergo training with arms and to make an oath. The applicant explained these circumstances in a hand-written declaration which specified that because of his religious beliefs he also refused to serve “in the Civil Construction Forces, the Transport Forces and elsewhere where alternative military service may be performed (where there is no service with arms)”.

On 24 October 1994 criminal proceedings were opened against the applicant on the suspicion that he contravened Section 361 § 1 of the Penal Code (Наказателен кодекс). On 11 November 1994 a group of three psychiatrists was appointed, who drew up a report. The preliminary investigation ended on 28 November 1994, when the prosecutor drew up an indictment and submitted it to the Shoumen District Court (Районен съд).

The court dealt with the case on 23 March 1995. About 50 persons adhering to Jehovah’s Witnesses came for the hearing. The applicant submits that the judge ordered that the hearing be held in another courtroom, the size of which allowed only the presence of the parties. The public was thus allegedly excluded. The minutes of the hearing do not mention this order but are typed on a standard form for a public hearing. The applicant, who was not legally represented, did not object.

 

 The court admitted in evidence the report drawn up by the psychiatrists who had examined the applicant during the preliminary investigation. That report stated, inter alia, that the applicant’s personality, which until two years before the report had been characterised by lack of full social adaptation, had undergone a transition to a personality with a well-structured system of values, centred on religion. The report concluded that the applicant understood well the meaning and the consequences of his acts. During the hearing one of the psychiatrists stated that the applicant displayed lack of self-criticism and refused to correct his behaviour.

The court also heard the applicant, his parents, his high school teacher and two officers from the Regional Military Office in Shoumen.

On 23 March 1995 the District Court convicted the applicant and sentenced him to one and a half years’ imprisonment. The court found that the law protected the religious freedoms but did not exempt anyone from military service. Moreover, the applicant refused to accept offers which were made in an effort to ensure respect for his religious beliefs. This indicated that the real reasons for the applicant’s refusal to serve lay in his unwillingness to do so rather than in his religious convictions.

The court decided that the sentence should not be suspended because its effective serving by the applicant could help him understand his constitutional duties and have a positive impact on his personal development. Also, “the sentence [had to] be served because the court [found] that the arrival of more than 50 of the [applicant’s] co-believers at the hearing [had been] organised in advance”; and because all those who had agreed to serve in the army despite their beliefs had to feel protected.

The applicant appealed to the Shoumen Regional Court (Окръжен съд) against his conviction and sentence. As a result, in accordance with the relevant law, the District Court’s judgment did not enter into force, pending the examination of the appeal, and the applicant was not imprisoned.

The Regional Court held a public hearing on 30 May 1995. The applicant appeared in person and was legally represented. In his written and oral submissions he argued that the District Court had not taken into account the undisputed evidence about his sincere religious beliefs of the applicant. He stated that the sentence was disproportionately harsh and pleaded for a suspended sentence.

On 6 June 1995 the Regional Court delivered its judgment. It found that the District Court had given excessive weight to the “general prevention” purpose of the sentence and that as a result the sentence was manifestly disproportionate (явно несправедлива). Instead, an opportunity should have been given to the applicant to think over his acts, under the threat of effective serving of the sentence if he re-offended. The Regional Court, therefore, suspended the sentence for a period of three years.

The applicant submitted a petition for review (преглед по реда на надзора) to the Supreme Court (Βърховен съд), alleging inter alia that the courts should have applied Section 59 § 2 of the Constitution, which provided for substitute service, and the Convention. The applicant also complained that the District Court had relied on the biased statements of one of the psychiatrists and that the Regional Court’s judgment constituted pressure on the  
applicant to abandon his religious beliefs. On 17 November 1996 the Supreme Court dismissed the petition on the merits, stating that the applicant undisputedly had committed the crime under Section 361 § 1 of the Penal Code.

B. Relevant domestic law and practice

a) The Constitution of 1991

Section 37

“(1)The freedom of conscience, the freedom of thought and the choice of religion and of religious or atheistic views shall be inviolable…

(2) The freedom of conscience and religion shall not be practised to the detriment of national security, public order, public health and morals, or the rights and freedoms of others.”

Section 58 § 2

“Religious or other beliefs shall not serve as grounds for a refusal to comply with the duties provided for in the Constitution or in acts of Parliament.”

Section 59

“(1) The defence of the fatherland is the duty and honour for every Bulgarian citizen …

(2) The carrying out of military duties, the conditions and procedure for exemption therefrom or for their replacement by substitute service, shall be regulated by act of Parliament.”

b) At the time of the applicant’s refusal to serve in the army, military service was regulated by the Military Service Act (Закон за всеобщата военна служба) of 1958. This law did not mention substitute service.

In December 1995 Parliament adopted a new law, the Defence and Armed Forces Act (Закон за отбраната и въоръжените сили на Република България), which replaced the 1958 law. It is a comprehensive piece of legislation comprising 314 sections. The new law entered into force on 27 February 1996. Its Section 84 provides:

“(1)The duty to perform conscription military service may be replaced by substitute service.

(2) The conditions and the rules for performing substitute service shall be determined by act of Parliament.”

c) An act of Parliament regulating substitute service was adopted in November 1998 and entered into force on 1 January 1999. Persons convicted for having refused to do military service before 1 January 1999 have not been granted amnesty.

 

d) The Penal Code of 1968

Section 361 § 1

“A Bulgarian citizen who avoided military service shall be punished by up to three years’ imprisonment.”

COMPLAINTS

1. The applicant complains that his conviction and sentence amounted to an interference with his rights protected by Article 9 of the Convention and that this interference was not justified under the second paragraph of this provision as it was not “prescribed by law”.

The applicant submits that the Bulgarian Constitution of 1991 expressly provides for a substitute service and stipulates that the specific rules in this respect are to be regulated by act of Parliament. Therefore, in the applicant’s view, Bulgaria has made its choice on this issue and has recognised the right to substitute service as early as 1991.

However, a law elaborating rules for an substitute service was not adopted for many years and the Penal Code has not been amended. The applicant submits that as a result the courts in his case applied a provision of the Penal Code which was contrary to the Constitution, the Constitution being directly applicable in Bulgaria. The interference with his rights under Article 9 of the Convention was, therefore, not “prescribed by law” in a clear and unequivocal manner. Indeed, the applicant considers that he was punished due to the failure of Parliament to abide by the 1991 Constitution and to adopt a law regulating substitute service.

The applicant also complains under Article 9 of the Convention that he was put under pressure to change his religious beliefs. In particular, the courts stated in their decisions in his case that the sentence was necessary to influence his behaviour in the future. Furthermore, the applicant submits that he risks endless convictions each year when he would be summoned to do his military service, the only possible way out of this situation being to change his beliefs and accept to serve in the army.

2. The applicant complains under Article 6 § 1 of the Convention that the District Court excluded the public at the hearing of his case without providing any reasons. Moreover, the District Court in its judgment of 23 March 1995 drew unfavourable conclusions for the applicant from the fact that a group of people allegedly supporting the applicant had appeared at the hearing. Even if the applicant had organised their arrival, as suggested by the District Court, this was in exercise of his right to a public hearing.

THE LAW

1. The Government submit that the application should be rejected as constituting an abuse of the right to petition. In their view the allegations are unfounded, one-sided, and misleading.

 

 The Court finds that the Government’s objection under Article 35 § 3 of the Convention is unsubstantiated, there being no indication that the application was knowingly based on untrue facts (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of judgments and decisions 1996-IV, pp. 1210 and 1211, §§ 53 and 54).

2. The applicant complains under Article 6 § 1 of the Convention that the District Court excluded the public at the hearing of his case and drew unfavourable conclusions from the fact that other persons had appeared.

The Government submit, inter alia, that the applicant never raised this issue before the national courts and that, therefore, domestic remedies have not been exhausted.

The applicant admits that he did not complain before the courts, but asserts that that would have been to no avail. He explains that under Bulgarian law oral evidence cannot be adduced on appeal. Therefore, in view of the fact that the minutes of the hearing of 23 March 1995 did not mention the exclusion of the public, it would have not been possible to prove the allegations, which are now submitted to the Court.

The Court recalls that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. This provision must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that the applicant should have raised before the national authorities, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, the complaints he intends to make subsequently in Strasbourg (see, among other authorities, the Arslan v. Turkey judgment of 8 July 1999, Reports 1999-.., p. .., § 33).

The Court is not convinced by the applicant’s arguments in respect of the exhaustion of all domestic remedies. It notes that he did not object against the alleged exclusion of the public during the hearing on 23 March 1995 and did not raise the issue before the Regional and the Supreme Courts. However, it is not disputed that these courts were competent to quash the District Court’s judgment for failure to observe a procedural requirement. Without having attempted to obtain their decision on the matter, the applicant cannot speculate as to whether the evidentiary difficulties involved would have rendered such an attempt fruitless.

The above considerations also apply as regards the applicant’s complaint that the District Court drew unfavourable conclusions from the attendance of Jehovah’s Witnesses at the hearing. The Court notes that the applicant, in his appeals to the Regional and the Supreme Courts, argued, inter alia, that the sentence was disproportionately harsh, but never even mentioned the above issue which he later formulated in his application to the Convention organs.

The Court finds, therefore, that the complaint under Article 6 § 1 of the Convention has to be rejected for failure to comply with the requirement of exhaustion of all domestic remedies, within the meaning of Article 35 § 1 of the Convention.

3. The applicant complains that his conviction and sentence amounted to an unjustified and unlawful interference with his rights protected by Article 9 of the Convention.

 

 This provision reads as follows:

Article 9 - Freedom of thought, conscience and religion

“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 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.”

The Government recall that Article 4 § 3(b) of the Convention affords States a choice in respect of substitute service. They submit that the relevant provisions of the Bulgarian Constitution, its Sections 37 § 1 and 59 §§ 1 and 2, have to be read as a whole. The Constitution enshrines the moral and legal duty to do military service. It protects the individual’s freedom of conscience and religion, but expressly excludes religious and moral convictions as grounds to refuse compliance with the citizen’s fundamental duties, military service being one of them. Section 59 § 2 provides for the adoption of an act of Parliament on substitute service, as a substitute to military service. Nevertheless, before the adoption of this act of Parliament, there did not exist a legal mechanism for such substitution and any failure to comply with the constitutional obligation under Section 59 § 1 was considered a crime. The elaboration of a law on substitute service naturally required time. Until its adoption the State could not remain without guarantees for its security and therefore had to apply the existing law. Even though as of 1994 Bulgarian legislation was not fully in conformity with Article 9 of the Convention, the applicant’s obligation to do military service stemmed directly from the Constitution, which under Bulgarian law prevails in respect of any international treaty.

The Government further maintain that, assuming an interference with the applicant’s rights under Article 9 § 1 of the Convention, it was prescribed by law and necessary in a democratic society for the protection of security and public morals. In the Government’s view, the applicant could well have predicted the consequences of his acts, as the Constitution and the law as in force at the time were clear and foreseeable. Furthermore, he was offered to do service which would have involved only about 35 days of initial training with arms. His sentence was not disproportionate and was suspended. Finally, it was not true that his conviction amounted to pressure on him to abandon his beliefs. He was not convicted because of his views, refusal to do military service being punishable regardless of whether it was based on religious beliefs or any other motive.

The applicant replies that the recognition by the Bulgarian Constitution, as early as 1991, of conscientious objectors and of their right to substitute service, is undisputed. This was confirmed by the adoption of the Defence and Armed Forces Act in December 1995. Therefore, substitute service was provided for under Bulgarian law, but the competent authorities failed to elaborate the details of its legal regulation.

The applicant further submits that the interference with his Article 9 rights did not have a legitimate aim and was not justified under the second paragraph of that provision. He argues that under Article 9 § 1 of the Convention the protection of a person’s convictions and beliefs is absolute. Under no circumstances is it permissible to exert pressure on someone to change his or her creed or views. What may be subject to lawful and justified interference are only the prohibited forms of manifestation of one’s beliefs. In the applicant’s case, however, he only attempted to exercise a right which was enshrined in the Constitution, the right to perform substitute service. Under the Constitution this was a permitted form of manifestation of his religious beliefs and could not, therefore, justify a penal sanction.

The applicant further refers to the wording of the judgments in his case and submits that the courts clearly expressed disapproval of his religious beliefs and openly discussed how the sentence must help him to reconsider them. This approach and the surrounding circumstances rendered the criminal proceedings in which he was involved a tool for pressure on him to change his convictions, a fact which may give rise to an issue under Article 18 of the Convention.

As to the offer to serve in the Civil Construction Forces, or in other units, the applicant notes that this would have undisputedly involved training with arms, taking an oath and service for the benefit of the armed forces. The applicant further submits that, in the absence of rules elaborating the exercise of his right to substitute service, the authorities could have ensured respect for his Convention rights by renouncing prosecution, until the adoption of such rules.

The applicant also maintains that the interference with his rights was unlawful in view of the contradiction between the Constitution and the manner in which the Penal Code was applied in his case.

Having examined the applicant’s complaints under Article 9 of the Convention, the Court finds that they 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 manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaints under Article 9 of the Convention concerning his conviction and sentence for his refusal to do military service;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää 
 Registrar President

32438/96 - -


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