FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42967/98 
by Philemon LÖFFELMANN 
against Austria

The European Court of Human Rights (First Section), sitting on 1 February 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 9 July 1998,

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, Mr Philemon Löffelmann, is an Austrian national, who was born in 1976 and lives in Maissau/Austria. He is represented before the Court by Mr R. Kohlhofer, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, 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.

Upon his baptism on 9 July 1994 the applicant became a member of the Jehovah’s Witnesses in Austria, within which he assumed the function of a preacher (Prediger, allgemeiner Pionier) and, since 27 November 1996, of a deacon (Diakon, Dienstamtsgehilfe). In this function he assisted the spiritual work of presbyters of the Jehovah’s Witnesses.

On 17 November 1994 the Lower Austrian Military Authority (Militärkommando) found the applicant fit to perform his military service. On 3 July 1995 the applicant started his military service, however, on 1 August 1995 he was discharged following a military medical expert opinion that had found him unfit for service.

On 28 September 1995 the Lower Austrian Military Authority issued a drafting order (Stellungsbescheid) to the applicant ordering him to undergo another examination as to his ability to perform military service pursuant to section 24(8) of the Military Service Act (Wehrgesetz), as in force at the relevant time. The applicant appealed against this order, claiming in particular that he should be dispensed from military service since he performed a function within the Jehovah’s Witnesses which was equivalent to that of members of a recognised religious society who were exempted from military service under section 24(3) of the Military Service Act. To restrict such a privilege to members of recognised religious societies was not objectively justified and therefore in breach of the Federal Constitution.

On 16 November 1995 the Federal Minister for the Defence (Bundesminister für Landesverteidigung) dismissed the applicant’s appeal and confirmed the lower authority’s decision.

On 8 January 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), requesting the Court to strike down the wording “recognised religious societies” in section 24(3) of the Military Service Act.

On 1 December 1997 the Constitutional Court refused to deal with the applicant’s complaint on account of its lack of prospects of success. It furthermore referred to an earlier decision by which it had found that the mere drafting order on members of the Jehovah’s Witnesses raised no concerns as regards compliance with Article 9 or Article 4 § 2 of the Convention either.

On 26 March 1998 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant’s complaint. It noted that the applicant had solely complained about section 24(3) of the Military Service Act in conjunction with the 1998 Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as the “1998 Act”), which had entered into force on 10 January 1998. However, the Administrative Court had to limit its examination on the legality of the drafting order to the legal situation at the time of the latter’s issuance. Referring to the case-law quoted by the Constitutional Court, it found no concerns as regards the legality of the drafting order and therefore also no cause to institute proceedings reviewing the constitutionality (Gesetzesprüfungsverfahren) as proposed by the applicant.

On 14 May 1998 the Lower Austrian Military Authority issued another induction order for the examination of the applicant’s fitness to perform military service.

On 19 May 1998 the applicant lodged a complaint with the Constitutional Court against this order. He submitted in particular that owing to the 1998 Act the Jehovah’s Witnesses had received the status of a “registered religious community”. However, the ten years’ period for a successful application for recognition under the Recognition Act (Anerkennungsgesetz), newly introduced by section 11 of the 1998 Act, lacked an objective justification. Furthermore, it impeded any recognition for the following ten years. Since section 24(3) of the Military Service Act referred to “recognised religious societies” and restricted exemption from military service to members of recognised religious societies, the applicant again requested the Constitutional Court to strike down this limitation and the ten-year period stipulated in section 11 of the 1998 Act.

On 8 June 1998 the Constitutional Court refused to deal with the complaint on account of its lack of prospects of success. It further held that the provision of the 1998 Act in issue was not directly applicable to the case at issue.

Subsequently, the applicant filed a request for recognition as a conscientious objector (Zivildiensterklärung), which was granted.

Between 1 February 1999 and 31 January 2000 he performed his civilian service in a social institution.

On 1 February 2000 the applicant joined the “Religious Order of the Jehovah’s Witnesses” (Orden der Sondervollzeitdiener der Zeugen Jehovas) where he lived and worked as a preacher (Bethelmitarbeiter).

In February 2001 he left the order and continued to work as a preacher and deacon.

B.  Relevant domestic law

Article 9 a § 3 of the Federal Constitution reads as follows:

“Every male Austrian citizen is liable for military service. Conscientious objectors who refuse to perform compulsory military service and who are exonerated therefrom must perform an alternative service. Details are regulated by ordinary law.”

Section 24(3) of the Military Service Act, as in force at the relevant time, reads as follows:

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

1.  ordained priests,

2.  persons involved in spiritual welfare or in religious teaching after graduation from 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 pastoral function.”

Section 24(8) of the Military Service Act provides, inter alia, that persons whose fitness for military service – after being initially established - becomes questionable, have to undergo another examination. However, the latest decision on fitness for performance of the military service remains valid until the final conclusion of the new examination.

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. 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 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.  He further complained under Article 13 that the Constitutional Court had refused to deal with the merits of his complaint.

THE LAW

1.  The applicant complained of discrimination on account of his religion, in particular that he was not exempt from the obligation to perform military service as he was not a member of a recognised religious society though having a comparable function. He relies 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 provide:

“...

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 Article 9 a § 3 of the Federal Constitution made every male Austrian citizen liable to perform military service. Exemptions from this obligation were set out in section 24(3) of the Military Service Act and were linked to membership of 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 that of persons involved in spiritual welfare or in religious teaching after graduation from theological studies or who were preparing for such functions. In this respect, the Government stressed that the applicant had not stated throughout the domestic proceedings that he intended to study theology at a university or any equivalent institution. Therefore, notwithstanding his religious denomination, the applicant had failed to prove that he complied with any of the four 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 religious beliefs. Members of recognised religious societies who did not comply with the criteria laid down in section 24(3) of the Military Service Act were not exempt from military service either.

Further, the Government argued that the information and documents submitted by the applicant did not disclose that his function as a deacon, who assisted Presbyters of the Jehovah’s Witnesses, was comparable to any of those functions of members of recognised religious societies exempt from the obligation to perform military service under section 24(3) of the Military Service Act. Therefore, no assessment as regards the comparability of those functions could be made.

The applicant contested the Government’s view, maintaining that the Austrian authorities had never examined whether the applicant assumed a comparable function within the Jehovah’s Witnesses to those who were exempt from the obligation to perform military service.

While it was true that the Jehovah’s Witnesses had neither universities nor faculties within state or church universities, they offered nonetheless intensive theological training which consisted of theoretical studies and practical work. Presbyters and deacons were in charge of spiritual welfare, guided the community’s worship, provided social assistance, celebrated mass, baptism, marriages and funerals, and supervised the missionary work. The Religious Order of the Jehovah’s Witnesses had already existed for many decades and had about 160 members in Austria. Most of its members lived and worked in a community of preachers who celebrated together morning worship, prayer and studies; other members were special pioneers (Sonderpioniere) and travelling supervisors (“episcopoi”-bishops) who visited communities to perform missionary work and spiritual welfare.

The applicant pointed out that he worked full-time, whereas the above provision did not explicitly require full-time pastoral work. This fact distinguished the present case from the Grandrath v. Germany case (no. 2299/64, Commission’s decision of 23 April 1965, Yearbook Vol. 10, pp. 626-695) where the Commission found that the applicant, a Bible study conductor (Buchstudienleiter) of the Jehovah’s Witnesses who performed part-time pastoral work, did not comply with the exemptions from the obligation to perform military or civilian service under German law, which required full-time pastoral work. The Austrian authorities and courts linked the grant of exemption from civilian service only to membership of a recognised religious society and would not examine whether or not the person concerned performed comparable functions within the meaning of section 24(3) of the Military 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 also complained that the obligation to perform military service prevented him from manifesting his religion and belief, in breach of Article 9 of the Convention. 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.

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 military service entailed any concrete interference with his rights under Article 9.

The applicant contested this view and maintained that during the period of his civilian service he had to work forty hours a week, and thus could not perform his functions as a deacon and preacher and had to limit the exercise of his religion to his spare time.

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.

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 military service twice at three appellate levels, including two different courts. The fact that in the present case the Constitutional Court refused to deal with the applicant’s complaint, finding 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.

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, both taken alone and in conjunction with Article 14 of the Convention, that he was discriminated against on account of his religion in respect of the obligation to perform military service;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

LÖFFELMANN v. AUSTRIA DECISION


LÖFFELMANN v. AUSTRIA DECISION