FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33001/03 
by Matthias Stefan KOPPI 
against Austria

The European Court of Human Rights (First Section), sitting on 5 January 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev, 
 Mr D. Spielmann, judges
and Mr S. Nielsen, Section Registrar

Having regard to the above application lodged on 29 September 2003,

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, Mr Matthias Stefan Koppi, is an Austrian national, who was born in 1982 and lives in Rankweil. He is represented before the Court by Mr R. Kohlhofer, a lawyer practising in Vienna. The respondent Government are represented by Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

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

The applicant is a member of the “Bund Evangelikaler Gemeinden in Österreich”, which is a registered religious community (eingetragene Bekenntnisgemeinschaft) under the Registered Religious Communities Act 1998 (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften) since 11 July 1998.

From 2000 to 2001 the applicant attended the one-year theological biblical seminary (Bibelschule) St. Chrischona in Switzerland. Thereafter, he has been giving religious instructions to the youth and has been working as a municipal preacher (Prediger).

On 27 September 2000 the applicant filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung).

On 16 November 2000 the Minister for Internal Affairs recognised the applicant as a conscientious objector. Accordingly, he was exonerated from the duty to perform military service but liable to perform civilian service (Zivildienst).

On 20 December 2000 the applicant requested the Minister of Internal Affairs to apply Section 13 a § 1 of the Civilian Service Act in conformity with the Constitution and to exonerate him from the obligation to perform civilian service. He submitted that this provision exempted members of recognised religious societies who perform specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he, as a student of the theological seminary St. Chrischona, had a comparable clerical position within a registered religious community, namely the “Bund Evangelikaler Gemeinden in Österreich”. Consequently, he should be also exempted from civilian service.

On 18 January 2002 the Minister of Internal Affairs dismissed the applicant’s request. The decision referred to the findings of the Constitutional Court’s (Verfassungsgerichtshof) decision of 11 November 1998, in which it had held that exemption from the obligation to perform civilian service under Section 13 a of the Civilian Service Act merely applied to members of recognised religious societies and could not be extended to members of registered religious communities.

On 13 March 2002 the applicant filed a complaint with the Constitutional Court.

On 7 October 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success.

On the applicant’s request the Constitutional Court transmitted his complaint to the Administrative Court (Verwaltungsgerichtshof).

On 18 February 2003 the applicant supplemented his complaint.

On 18 March 2003 the Administrative Court, referring to the above-mentioned decision of 11 November 1998 by the Constitutional Court, dismissed the complaint. This decision was served on the applicant’s counsel on 9 April 2003.

B.  Relevant domestic law

Section 13 a § 1 of the Civilian Service Act (Zivildienstgesetz) provides as follows:

“Exemption from the obligation to perform civilian service applies to the following members of recognised religious societies:

1.  ordained priests,

2.  persons involved in spiritual welfare or in clerical teaching after graduation of theological studies,

3.  members of a religious order who have made the solemn vow, and

4.  students of theology who are preparing to assume a clerical function.”

Section 11 § 1 of the Federal Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften) entered into force on 10 January 1998 and stipulates, inter alia, that a religious association must have existed for ten years as registered religious community as an additional criterion for a successful application for recognition under the Recognition Act.

COMPLAINTS

1.  The applicant complained under Article 14 in conjunction with Article 4 § 3 of the Convention about discrimination on the ground of his religion. Thus, as he was not a member of a recognised religious society, he was liable to military or alternative civilian service, whereas members of recognised religious societies, having religious functions comparable to his functions, were exempted.

2.  The applicant also complained under Article 9 of the Convention of the obligation to perform military service or alternative civilian service which prevented him from manifesting his religion and belief. He further complained under this provision in conjunction with Article 14 that he was discriminated against as not being a member of a recognised religious society.

3.  Finally, he complained under Article 13 of the Convention that the Constitutional Court had refused to deal with the merits of his complaint.

THE LAW

The applicant complained about discrimination on account of his religion, in particular that he was not exempt from the obligation to perform civilian service as he was not a member of a recognised religious society though having a comparable function. He relied on Article 14 in conjunction with Article 4 § 3 of the Convention which provide as follows:

Article 14 of the Convention reads:

“The enjoyment of the rights and freedoms set forth in [the] 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 4 §§ 2 and 3 of the Convention provides:

“...

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:

(a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;

(b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d)  any work or service which forms part of normal civic obligations.”

The Government pointed out that the obligation to perform civilian service was a substitute service for conscientious objectors who refused military service. Section 13 a § 1 of the Civilian Act stipulated exemptions from this obligation which were linked to the membership in a recognised religious society. However, there were also further criteria with which the applicant did not comply either. The applicant had stated that his function would be comparable to those persons involved in spiritual welfare or in clerical teaching after graduation of theological studies or who prepared for such functions. In this respect, the Government stressed that the applicant had not stated throughout the domestic proceedings that he would study theology at a university or any equivalent institution. Furthermore, the applicant’s submissions that he would minister church services and carry out preaching activity were not substantiated and, in any event, irrelevant as he started doing that work long after the impugned decisions in the present case were issued. In his application the applicant stated that he was still a “student”. Therefore, notwithstanding his religious denomination, the applicant had failed to prove that he complied with the criteria of the above provision. Thus, there was no need to consider whether or not the applicant had been discriminated against on the ground of his confession. Also members of recognised religious societies who did not comply with the criteria laid down in Section 13 a § 1 of the Civilian Act were not exempt from civilian service.

The applicant contested these arguments and maintained that he held a function comparable with members of a recognised religious society. While it was true that the “Bund Evangelikaler Gemeinden in Österreich” had neither chairs nor faculties within state or church universities, it offered nonetheless intensive clerical training which consisted of theoretical studies and practical exercise. The applicant pointed out that the biblical seminary he visited had prepared him to exercise pastoral care (Seelsorge) and preaching and had to be considered as comprehensive formation for a clerical function. The applicant was giving religious instructions to adolescents aged between 11 and 14 years in his municipality, worked as a preacher and ministered church service since at the latest February 2002. In any event, the above provisions did not require the exercise of a clerical function but were complied with when a concerned person was preparing for such function. The applicant further referred to the case Grandrath v. Germany (no. 2299/64, Commission’s decision of 23 April 1965, Yearbook Vol. 10, pp.626-295) where the Commisssion found that the applicant, a Bible study conductor of the Jehovah’s Witnesses who performed part-time clerical work, did not comply with the exemptions from the obligation to perform military or civilian service under German law, which required full-time clerical work. In contrast to this case, the Austrian authorities and courts did not apply such criteria but only linked the grant of the exemption from civilian service to the membership of a recognised religious society and would not examine whether or not the person concerned performed comparable functions within the meaning of Section 13 a § 1 of the Civilian Service Act.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complained further that the obligation to perform military service or alternative civilian service prevented him from manifesting his religion and belief, in breach of Article 9 of the Convention. He further complained under this provision that he was discriminated against as not being a member of a recognised religious society.

Article 9 of the Convention provides:

“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 contended that the applicant’s submissions did not disclose that the obligation to perform civilian service entailed any concrete interference with his rights under Article 9 of the Convention. He had not yet been required to perform civilian service by a concrete assignment. In any event, civilian service was principally performed during five days a week and the applicant would have sufficient time to perform his religious functions during his leisure and on the week-end.

The applicant contested this view and maintained that his religious mission exceeded the one of an ordinary churchgoer and required more time than a week-end. Religious instructions and preaching activity required several days of preparation.

The Court considers, in the light of the parties’ submissions, that the complaint under Article 9 taken in conjunction with Article 14 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The applicant next complained that the Constitutional Court’s refusal to give a decision on the merits of his complaint was in breach of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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 Court notes that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999-VI). Article 13 does not however presuppose that the remedy or remedies resorted to must always be successful.

Turning to the present case, the Court notes that the applicant, who was represented by counsel, had ample opportunity to challenge the obligation to perform civilian service at the Minister of Internal Affairs, the Constitutional Court and the Administrative Court. The fact that one of these instances, namely the Constitutional Court, refused to deal with the applicant’s complaint, as it found that it lacked sufficient prospects of success, does not lead to the conclusion that a complaint to the Constitutional Court would not be an effective remedy as such, within the meaning of Article 13 (see mutatis mutandis Löffelmann v. Austria (dec.), no. 42967/98, 1 February 2005)

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 4 §§ 2 and 3 (b) and Article 9 of the Convention, both in conjunction with Article 14 of the Convention, that he was discriminated on account of his religion in respect of his obligation to perform civilian service;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 
Registrar President

KOPPI v. AUSTRIA DECISION


KOPPI v. AUSTRIA DECISION