FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49686/99 
by Markus GÜTL 
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 on 25 May 1999,

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 Markus Gütl, is an Austrian national, who was born in 1977 and lives in Leoben/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.

On 6 July 1991 the applicant was baptised in accordance with the ceremonial rite of the Jehovah's Witnesses and became an active member. On 1 December 1995 the applicant assumed the function of a preacher (Sondervollzeitdiener, allgemeiner Pionier).

On 20 December 1995 the Styrian Military Authority (Militärkommando) found the applicant fit to perform military service. It subsequently called him up (Einberufungsbefehl) to begin his military service on 1 July 1996. That order was later revoked.

On 13 January 1997 the applicant filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung).

On 14 April 1997 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).

From 28 July 1997 until 1 July 1998, the applicant lived in a community of preachers (Bethelfamilie), which, in the applicant's view, is similar to a religious order (Orden) and is called the “Religious Order of the Jehovah's Witnesses” (Orden der Sondervollzeitdiener der Zeugen Jehovas).

On 1 April 1998 the Ministry for Internal Affairs ordered the applicant to commence his civilian service (Zuweisungsbescheid) with the Styrian Regional Fire Brigade (Landesfeuerwehrkommando Steiermark) on 2 June 1998.

On 17 April 1998 the applicant became a deacon (Diakon, Dienstamtgehilfe) within the Jehovah's Witnesses.

On 30 April 1998 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Ministry's order of 1 April 1998, also requesting suspensive effect. The applicant submitted that he was living in a community of preachers since 28 July 1997 and devoted all his time to religious activities. On 17 April 1998 he became deacon and aimed at assuming the function of a presbyter within the Jehovah's Witnesses. Referring to German law (Section 10 § 1 (3) of the German Civilian Service Act) and jurisprudence and practice of the Federal Administrative Court (BVerwG, 29 September 1989, Zl. 8 C 53.87), he argued that persons in a similar situation (preacher and deacon) were exempt from compulsory military or civilian service. Further, the applicant complained that Section 13 a § 1 of the Civilian Service Act exempted only members of recognised religious societies performing specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he held a comparable clerical position within the Jehovah's Witnesses. Furthermore, Section 11 § 1 of the newly introduced Federal 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, established that recognition under the Recognition Act was only possible after ten years' existence as a registered religious community. Therefore this new provision impeded any recognition during the following ten years and made the Recognition Act inapplicable until 2008. The applicant requested the Constitutional Court to revoke the limitation of “recognised religious societies” within Section 13 a § 1 of the Civilian Service Act, and in the alternative to revoke the ten years' period stated in Section 11 § 1 of the 1998 Act.

On 8 June 1998 the Constitutional Court refused to deal with the applicant's complaint for lack of prospects of success.

On 24 June 1998 the applicant agreed with the Ministry for Internal Affairs to begin his civilian service in an institution for disabled persons on 1 July 1998 and, thus, left the community of preachers.

On 7 July 1998 the applicant requested the Constitutional Court to transmit his complaint of 30 April 1998 to the Administrative Court (Verwaltungsgerichtshof).

On 23 July 1998 the Constitutional Court granted the applicant's request.

On 18 August 1998 the applicant supplemented his complaint and requested the Administrative Court to institute proceedings reviewing the constitutionality (Gesetzesprüfungsverfahren) of the wording “recognised religious societies” of Section 13 a § 1 of the Civilian Service Act. In the alternative, he proposed to interpret the provision at issue in conformity with the principle of equality. Thereby, in view of his position as a deacon in the Jehovah's Witnesses he should be dispensed from the obligation to perform civilian service as this involved the support for the Presbyters by guiding the communities, clerical work in cooperation with other fellow Jehovah's Witnesses, performance of bible lectures, speeches and commentaries during worship and guidance for prayers which was, thus, equivalent to that of members of registered religious societies performing services relating to spiritual welfare or clerical teaching after graduation of theological studies or of students of theology who were preparing to assume a clerical function, respectively,

By a decision of 10 November 1998 the Administrative Court dismissed his complaint. It noted that the 1998 Act and in particular its Section 11 § 1 had not been applied and were not to be applied by the Ministry for Internal Affairs in the applicant's case. Rather the Ministry had to apply Section 13 a § 1 of the Civilian Service Act, requiring recognition of a religious society as a precondition for the exemption from civilian service. The provision as such raised no concerns as regards constitutionality, since it was objective not to grant the status of exemption from the obligation to perform civilian service to every functionary of a religious community - whether or not it was recognised. It further held that the impugned provision, due to its explicit wording, could not be interpreted in the way which the applicant proposed. The decision was served on the applicant's counsel on 15 January 1999.

On 30 June 1999 the applicant ended his civilian service and, on 1 July 1999, he rejoined the Religious Order of the Jehovah's Witnesses where he stayed until the end of July 2000. Subsequently, he left the community of preachers, continued to work as a preacher and obtained further clerical training.

In September 2003 the applicant began to do missionary work as a preacher in Serbia and Montenegro.

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 a 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 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 under Article 14 in conjunction with Article 4 of the Convention of discrimination on account of his religion as he was not exempt from civilian service while assuming a function within the Jehovah's Witnesses which was comparable those members of recognised religious societies who were exempt from it.

Article 4 §§ 2 and 3 of the Convention reads as follows:

“1.  (...)

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.”

Article 14 of the Convention provides:

“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.”

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 Service Act stipulated exemptions from the obligation to perform civilian service under certain circumstances. The Government argued that the documents submitted by the applicant did not disclose whether or not the applicant's function as a preacher within the community was comparable to those functions of members of recognised religious societies exempt from the obligation to perform civilian service as under Section 13 a § 1 of the Civilian Service Act. Therefore, no assessment could be made. Furthermore, the applicant had failed to prove, notwithstanding his religious denomination, 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 confession. Also members of recognised religious societies who did not comply with the criteria laid down in Section 13 a § 1 of the Civilian Service Act were not exempt from civilian service.

The applicant contested this view and maintained that he held a comparable function within the meaning of Section 13 a § 1 of the Civilian Service Act. While it was true that the Jehovah's Witnesses had neither universities nor faculties within state or church universities, they offered nonetheless intensive clerical training which consisted of theoretical studies and practical exercise. 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 existed already 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 for performing missionary work and spiritual welfare. The applicant pointed out that he worked full time, whereas the above provision did not explicitly require full time clerical 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 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. The Austrian authorities and courts 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 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 civilian service entailed any concrete interference with his rights under Article 9. Insofar the applicant argued that he had had to leave the community of preachers in order to perform civilian service, there was no interference with Article 9 discernable either. In particular, it appeared that he had belatedly raised this complaint in the domestic proceedings, as he had only referred to his position within the Jehovah's Witnesses after the service of the Ministry's order of 1 April 1998.

The applicant contested this view and maintained that when becoming a member of the Religious Order of the Jehovah's Witnesses he had made the solemn vow to devote his life to religious activities within the denomination. During the one-year civilian service, which required forty hours of work a week, he had been forced to leave the community of preachers and had only been able to perform his religious activities in his spare time. Only after the end of the civilian service had he been able to re-join the community and resume his full time clerical work.

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 also complained under Article 13 of the Convention that the Constitutional Court had not given a decision on the merits of his complaint.

Article 13 of the Convention 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 three appellate levels, including two court levels. 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 be no 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 civilian service;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

GÜTL v. AUSTRIA DECISION


GÜTL v. AUSTRIA DECISION