AS TO THE ADMISSIBILITY OF
Application No. 17086/90
by Tomi AUTIO
against Finland
The European Commission of Human Rights sitting in private on
6 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 May 1990 by
Tomi AUTIO against Finland and registered on 28 August 1990 under file
No. 17086/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Finnish citizen born in 1969 and resident at
Kaarenkylä. He is a carpenter by profession. Before the Commission
he is represented by Mr. Jouni Salminen, lawyer to the Finnish Union
of Conscientious Objectors.
In 1988 the applicant requested to be exempted from ordinary
military service because of his serious ethical conviction. By letter
of 11 October 1988 the Staff of the Military District of Itä-Uusimaa
(Itä-Uudenmaan sotilaspiirin esikunta, staben för Östra Nylands
militärdistrikt) confirmed his exemption and informed him of the terms
of substitute service (siviilipalvelu, civiltjänstgöring).
In 1989 the Ministry of Labour (työministeriö, arbetsministeriet)
ordered the applicant to start his service on 23 October 1989. After
an initial two-month training period the applicant worked from
19 December 1989 at a hospital as an assistant janitor. The hospital
was situated about 250 kilometres from his home and he was accommodated
in its dormitory.
Until 1 January 1987 the length of substitute service was based
on the 1969 Act on Unarmed Military Service and Substitute Service
(laki 132/69 aseettomasta palveluksesta ja siviilipalveluksesta, lag
132/69 om vapenfri tjänst och civiltjänst, hereinafter "the 1969 Act"),
the length of service being twelve months. Conscientious objectors
applying for substitute service had to undergo an inquiry procedure by
the Examination Board (tutkijalautakunta, prövningsnämnden) concerning
the sincerity of their religious or ethical conviction.
Under the 1950 Military Service Act (laki 452/50 varusmies-
palveluksesta, värnpliktslag 452/50) the length of ordinary military
service is eight months. Conscripts who receive officers' and certain
other kinds of special training perform eleven months of service. By
virtue of an amendment to the Act which entered into force in 1989
conscripts receiving certain special training perform nine and a half
months of service.
Those opposed to armed service may perform unarmed military
service (aseeton palvelu, vapenfri tjänst) of eleven months.
The 1969 Act was based on the principle of proportionality, the
Parliamentary Committee on Defence Matters (puolustusvaliokunta,
försvarsutskottet) having rejected the Government's proposal that the
length of unarmed and substitute service be fourteen months. The
Committee stated inter alia:
"... the [proposed] length of unarmed and substitute
service ..., that is 120 days and 180 days more than the
length of the ordinary service prescribed in the Military
Service Act, is unreasonable. It cannot be considered
appropriate to treat these conscripts in an essentially
more onerous way than the others. ..." (Report No. 5/1968)
On 1 January 1987 the Act on Temporary Amendments to the 1969 Act
(laki 647/85 aseettomasta palveluksesta ja siviilipalveluksesta annetun
lain muuttamisesta, lag 647/85 om temporär ändring av lagen om vapenfri
tjänst och civiltjänst, hereinafter "the 1985 Act") entered into force,
prolonging the length of substitute service to sixteen months and
abolishing the inquiry procedure. A request for exemption from
ordinary military service is now to be made to the Board of
Conscription (kutsuntalautakunta, uppbådsnämnden) and should include
a declaration that the conscientious objection is based on religious
or ethical grounds. Exemption is to be granted upon this request. The
objector may then perform unarmed military service or substitute
service. The 1985 Act will remain in force until the end of 1991.
According to the reasons given by the Government gave when
proposing the 1985 Act to Parliament the substitute service had
previously in some respects had a privileged character. The Government
therefore intended to adjust the practical performance of this service,
making it as burdensome as military service. This aim was to be
achieved by the amendment to Section 26 of the 1969 Act and by
regulations regarding the conditions of substitute service issued by
the Ministry of Justice (oikeusministeriö, justitieministeriet) in
1986. Both measures were taken with the aim of increasing the number
of working hours for conscientious objectors and of making the
performance of substitute service less a matter of individual
treatment.
The prolongation of the substitute service was based on the
consideration that the conscientious conviction was to be "measured".
The Government stated that the inquiry procedure could be abolished,
provided that the sincerity of the conviction could be ascertained by
substantially prolonging the length of substitute service:
"... Provided that substitute service would be 240 days
longer than ordinary military service ... there would be a
reasonable cause to believe that persons applying for
substitute service have a religious or ethical conviction
making it impossible to perform armed service ..."
(pp. 3-4 of the Bill to Parliament)
Simultaneously with the 1985 Act, the Act on the Exemption of
Jehovah's Witnesses from National Service (laki 645/85 Jehovan
todistajien vapauttamisesta asevelvollisuuden suorittamisesta, lag
645/85 om befrielse för Jehovas vittnen från fullgörandet av värnplikt
i vissa fall, hereinafter "the Exemption Act") was enacted. On the
basis of the Exemption Act members of the religious community
"Jehovah's Witnesses" may, on request, be exempted from all forms of
national service.
After the Convention entered into force with regard to Finland
the applicant, invoking the Convention, requested the Ministry of
Labour to shorten the length of his service. By decision of 21 May
1990 this request was rejected.
In February 1991 the applicant's service ended.
COMPLAINTS
The applicant complains inter alia that the length of the
substitute service he had to perform was discriminatory in comparison
with the length of ordinary military service. He contends that the
discrimination related to the enjoyment of his right to freedom of
thought, conscience and religion.
He alleges that the length of substitute service was not based
on an objective and reasonable justification, since it was the
deliberate intention of the Government to make the performance of this
service more burdensome than the performance of military service. He
submits that the fact that the substitute service was prolonged as a
precondition for the exemption of members of "Jehovah's Witnesses" from
all national service, that is to say in a "legislative package", is a
further indication of the unacceptable purposes behind the prolongation
of substitute service.
He further submits that, both conscripts and conscientious
objectors being as poorly paid, the longer duration of the substitute
service supports the argument that it is discriminatory. He finally
submits that under the legislation of other Western European countries
providing for substitute service the length of this service is, with
one exception, as long as or only somewhat longer than military
service. This also goes for Poland and Hungary. Thus, Finland is an
exception by international comparison.
He invokes Article 14 read in conjunction with Article 9 of the
Convention.
THE LAW
The applicant complains that the length of his substitute service
was discriminatory in comparison with the length of ordinary military
service. He alleges that the discrimination related to the enjoyment
of his right to freedom of thought, conscience and religion. He
invokes Article 14 in conjunction with Article 9 (Art. 14+9) of the
Convention.
Article 9 (Art. 9) of the Convention reads:
"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."
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this 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 Commission has previously found that the right to
conscientious objection is not as such guaranteed by Article 9
(art. 9) of the Convention or any other provision of the Convention or
its Protocols (cf. e.g. No. 7565/76, Dec. 7.3.77, D.R. 9 p. 117; No.
7705/76, Dec. 5.7.77, D.R. 9 p. 196; No. 10640/83, Dec. 9.5.84, D.R.
38 p. 219; No. 10410/83, Dec. 11.10.84, D.R. 40 p. 203; No. 11850/85,
Dec. 2.3.87, D.R. 51 p. 180).
The Commission recalls, however, that Article 9 (art. 9) and the
other provisions of the Convention defining substantive rights are
supplemented by Article 14 (art. 14) prohibiting discrimination in the
enjoyment of such rights. A measure which as such could be in
conformity with one of the normative provisions may nevertheless
violate that provision taken in conjunction with Article 14 (art. 14),
if it is applied in a discriminatory manner. However, there can be no
room for the application of Article 14 (art. 14), unless the facts at
issue fall within the ambit of one of the other substantive provisions
of the Convention (cf. Eur. Court H.R., Inze judgment of 28 October
1987, Series A no. 126, p. 17, para. 36 with further reference).
The Commission finds that, although Finland was not obliged under
Article 9 (art. 9) of the Convention to recognise the applicant as a
conscientious objector, the applicant's complaints nevertheless fall
within the ambit of that provision, and Article 14 (art. 14) of the
Convention is therefore applicable (cf. the above-mentioned No.
10410/83, Dec. 11.10.84, D.R. 40 p. 207).
For the purposes of Article 14 (art. 14) of the Convention, a
difference in treatment is discriminatory if it "has no objective and
reasonable justification", that is, if it does not pursue a "legitimate
aim", or if there is no "reasonable relationship of proportionality
between the means employed and the aim sought to be realised". The
Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations
justify a different treatment in law. The scope of the margin will
vary according to the circumstances, the subject-matter and its
background (see the above-mentioned Inze judgment, p. 18, para. 41 with
further references).
The Commission considers that, in certain respects, someone who
has opted for substitute service is in a comparable position to someone
who has to do military service. To this extent there was a
differential treatment in the present case (cf. the above-mentioned No.
11850/85, Dec. 2.3.87, D.R. 51 p. 182).
The Commission notes, however, that any system of compulsory
military service imposes a heavy burden on the citizens. The burden may
be regarded as acceptable only if it is shared in an equitable manner
and if exemptions from the duty are based on solid grounds (cf. the
above-mentioned No. 10410/83, Dec. 11.10.84, D.R. 40 p. 203 [207]).
The Commission further notes that the ratio legis of the 1985 Act was
explained, in the relevant Bill to Parliament, as follows:
"As the convictions of conscripts applying for civilian
service will no longer be examined, the existence of these
convictions should be ascertained in a different manner so
as not to let the new procedure encourage conscripts to
seek an exemption from armed service purely for reasons of
personal benefit or convenience. Accordingly, an adequate
prolongation of the term of such service has been deemed
the most appropriate indicator of a conscript's
convictions."
Having regard to these reasons and the other considerations set
out above, the Commission is satisfied that the differential treatment
in question pursued a "legitimate aim".
The question remains whether the differential treatment also
fulfilled the requirement of proportionality, inherent in Article 14
(art. 14). In this regard the Commission accepts, on the one hand, that
genuine conscientious objectors, whose conviction does not allow them
to opt for the shorter military service, may find the duration of their
service unreasonable. On the other hand, the legislation in question
has relieved all those opting for substitute service from the duty to
prove the genuineness of their conviction. Although the duration of
substitute service is considerably longer than that of military service
the Commission, taking into account the State's margin of appreciation,
finds that the differential treatment in question does not amount to
a violation of Article 14 read in conjunction with Article 9
(art. 14+9) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy