AS TO THE ADMISSIBILITY OF
Application No. 24630/94
by Waldo J.-P. HEUDENS
against Belgium
The European Commission of Human Rights sitting in private on
22 May 1995, the following members being present:
MM. C.A. NØRGAARD, President
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
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 12 April 1994 by
Waldo J.-P. HEUDENS against Belgium and registered on 19 July 1994
under file No. 24630/94;
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 applicant is a Belgian national, born in 1962, and resides
in Kortenberg, Belgium. He is a Jehovah's witness. Before the
Commission he is represented by Mrs. L. Versluys, a lawyer practising
in Leuven, Belgium.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In March 1986 the applicant, being eligible for compulsory
military service pursuant to Section 2 of the Co-ordinated Laws on
Military Service of 30 April 1962 (Gecoördineerde Dienstplichtwetten
van 30 april 1962), informed the Minister of Defence in writing that,
as a Jehovah's witness, he would refuse to perform military service or
substitute civilian service.
On 5 August 1987 the applicant was questioned by the judicial
police (gerechtelijke politie) of Turnhout in respect of his refusal
to fulfil his military obligations. It appears that between 1986 and
the beginning of 1992 the applicant was engaged in proceedings
concerning the question whether he could be regarded as a conscientious
objector within the meaning of the statutory rules on military service,
a status which he refused to accept for being too closely linked with
military service.
By letter of 16 March 1992 the applicant informed the Provincial
Governor of Antwerp that he would not comply with the invitation he had
received to present himself within 15 days after 6 April 1992 at the
Recruitment and Selection Centre for the purposes of fulfilling his
military duties.
The applicant did not present himself at the Recruitment and
Selection Centre within the prescribed time-limit. He was therefore
regarded as a deserter by virtue of Section 107 para. 1 of the Co-
ordinated Laws on Military Service of 30 April 1962. Under Section 107
para. 2, infringements of the first paragraph of that provision are
tried by military courts and are liable to the penalties laid down in
the Military Penal Code.
On 19 August 1992 the applicant, after having reported himself
to the Belgian national police (Rijkswacht), was apprehended. On the
same day, after having heard the applicant, the Judicial Board of
Inquiry of the Court Martial (Rechterlijke Commissie van de Krijgsraad)
of Brussels noted the charge of desertion against him and ordered his
detention on remand.
On 1 September 1992 the applicant requested the Court Martial
(Krijgsraad) of Brussels to order his release.
On 8 September 1992, following adversarial proceedings in which
the applicant was represented by a lawyer and in which he had stated
not to be willing to perform ordinary military service or substitute
civilian service, the Permanent Court Martial (Bestendige Krijgsraad)
of Brussels, consisting of four military and one civilian judge,
rejected the applicant's release request, convicted him of desertion
in peace-time and sentenced him to 24 months' imprisonment.
The applicant's appeal was rejected on 28 October 1992 by the
Courts Martial Appeal Court (Militair Gerechtshof) of Brussels,
consisting of four military and one civilian judge, following
adversarial proceedings. It upheld the judgment of 8 September 1992.
The Courts Martial Appeal Court rejected, inter alia, the applicant's
complaint of a violation of Section 6 of the Constitution (Grondwet),
which provision guarantees equal treatment for everyone. On this point
it held on page five, fifth paragraph, of its judgment:
[translation]
" Considering that the accused can derive no argument
from Section 6 of the Constitution, as the principle of
equality implies, inter alia, that everyone, who concretely
is in a same situation, shall be treated equally; that the
mere fact that compulsory service, either military or
civil, only exists for the male part of the Belgian
citizens does not alter this finding, as this applies
without distinction to this part of the population;"
The applicant's subsequent appeal in cassation was rejected on
19 October 1993 by the Court of Cassation (Hof van Cassatie). The Court
of Cassation rejected the applicant's argument that, since the acts
with which he was charged should be classified as a "political"
offence, he should have been tried by a civilian criminal court (Hof
van Assisen) and not by a military court.
The Court of Cassation further rejected the applicant's argument
that military courts, the majority of whose members are military
officers, do not objectively have the independence and impartiality
required by Article 6 para. 1 of the Convention to try an offence
resulting from a persons's refusal to fulfil military obligations for
moral reasons. On this point it noted that the military officers
exercising judicial powers as members of a military court are not only
exempt from the hierarchical and supervisory authority of political,
administrative and military authorities, but are also bound to remain
independent vis-à-vis the said authorities and the parties to the trial
or any de facto authority since in the oath taken before they take up
their duties, in accordance with Sections 54 and 114 of the Law of
15 June 1899, these officers make a public and solemn undertaking to
abide by the obligations of independence and impartiality. It therefore
found that it cannot be derived from the mere composition of military
courts that they lack the required independence and impartiality within
the meaning of Article 6 para. 1 of the Convention. It further did not
find it established that the military courts were biased in the way
they dealt with the applicant's case.
Insofar as the applicant complained that the principle of
equality of arms had been violated as a consequence of the very large
impact the "krijgsauditeur", the military prosecutor, appears to be
able to have on decisions of military courts, whereas the applicant is
unable to have the same impact, the Court of Cassation held that it had
not appeared that the relevant statutory regulations in respect of
proceedings before the Courts Martial Appeal Court had been violated.
The Court of Cassation, after having noted that the applicant had
failed to substantiate his allegations that the "krijgsauditeur" could
exercise, and in his case in fact had exercised, more influence than
the defence and that the conviction and the sentence imposed had
exclusively been decided by the judges involved, dismissed this
complaint as too vague.
As regards the applicant's complaint that the Courts Martial
Appeal Court had failed to properly answer his complaint on the alleged
violation of his right to equal treatment with women by the practice
to reserve compulsory military service only for the male part of the
population, the Court of Cassation, inter alia, held:
[Dutch]
" Overwegende dat aldus geen schending door een wet, een
decreet of een in artikel 26bis van de Grondwet bedoelde
regel van de artikelen 6 en 6 bis van de Grondwet wordt
opgeworpen, maar een schending van die bepalingen door de
door eiser aangevochten praktijk ;
(...)
Overwegende dat eiser te dezen bij de appelrechters
slechts concludeerde zoals in de stukken 41 en 42 van het
strafdossier is weergegeven ;
Dat de appelrechters door hun overwegingen op de
bladzijde vijf, vijfde overweging, van het bestreden
arrest, eisers aanvoeringen verwerpen, de conclusie
beantwoorden en hun beslissing naar recht verantwoorden ;
Dat de grief niet kan worden aangenomen ;"
[translation]
" Considering that thus no violation by an Act, a Decree
or a rule, referred to in Section 26bis of the
Constitution, of the Sections 6 and 6bis is alleged, but a
violation of those provisions by the practice challenged by
petitioner [of cassation] ;
(...)
Considering that, on this point, before the appeal
judges petitioner only argued as described in the documents
41 and 42 of the criminal case-file ;
That the appeal judges by their reasoning on page
five, fifth consideration, of the challenged judgment
reject the petitioner's submissions, reply to the argument
and base their decision on the law ;
That the complaint cannot be accepted ;"
The Court of Cassation also rejected the applicant's other
complaints which concerned, inter alia, Articles 5 para. 3, 9, and 10
of the Convention.
On 24 February 1994 the applicant was imprisoned at Leuven.
In February 1995 Belgium abolished compulsory military service.
Where it is alleged that a statutory rule is contrary to the
Constitution, an appelant in cassation may request the Court of
Cassation to put a preliminary question to the Court of Arbitration
(Arbitragehof). Pursuant to Section 26 para. 2 and Section 28 of the
Special Act of 6 January 1989 on the Court of Arbitration (Bijzondere
Wet van 6 januari 1989 op het Arbitragehof), the Court of Cassation
cannot refuse an appelant's request to put such a question to the Court
of Arbitration and is bound by the latter court's finding.
COMPLAINTS
1. The applicant complains under Article 5 para. 3 of the Convention
that he was not brought to trial within a reasonable time, as he had
informed the Minister of Defence already in 1986 of his refusal to
perform military service and substitute civilian service, but it was
not until 1992 that the Court Martial dealt with his case.
2. The applicant complains under Article 6 para. 1 of the Convention
that he did not receive a hearing by an impartial and independent
tribunal. He submits that, as a civilian conscientious objector, he
should have been brought before a civilian court and not before
military courts, the majority of whose members are military officers,
the more so as military courts in general impose higher sentences than
ordinary courts and as the detention regime for sentenced military
persons is more strict than for sentenced civilians. He also complains
that the position and influence of the office of the "krijgsauditeur",
who performs investigating functions without combining these with
prosecuting functions, violate the principle of equality of arms. The
applicant states he does not wish to complain of the activities of the
"krijgsauditeur" in the pre-trial stage of the proceedings against him,
but of the impact that the military prosecutor's department (het
krijgsauditoriaat) appears to be able to have on the decisions of
military courts, whereas the applicant is not able to have the same
impact.
3. The applicant complains under Articles 9 and 10 of the Convention
that, as a Jehovah's witness, he was not exempted from performing
military service and substitute civilian service. He submits that in
certain other European countries special measures have been taken in
respect of Jehovah's witnesses, such as full exemption from military
service, a symbolic sentence that is not executed or arrangements for
a military service performed in a way which is compatible with the
beliefs of Jehovah's witnesses.
4. The applicant finally complains under Article 14 of the
Convention that he is discriminated against on the basis of his
religion, as for different forms of conscientious objections against
military service certain alternatives have been created, such as
performing military service without having to carry arms and different
kinds of substitute civilian service. However for conscientious
objectors who on moral grounds fully refuse to fulfil their military
obligations ("totaalweigeraars") no specific measure has been taken.
They are sentenced to prison for their convictions. The applicant also
submits that he is discriminated against as a man, as female Jehovah's
witnesses are not punished for their convictions. He finally complains
that for failure to fulfil military obligations military courts impose
higher sentences than civilian criminal courts in cases concerning
conscientious objectors who have failed to perform substitute civilian
service.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention that, given the period which elapsed between his initial
letter to the Minister of Defence and the proceedings before the Court
Martial, he was not brought to trial within a reasonable time.
Article 5 (Art. 5) of the Convention, insofar as relevant, reads:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
(...)
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; (...)
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall (...) be
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for
trial.
(...)."
The Commission considers that the applicant's initial letter of
March 1986 cannot be taken as the starting point when calculating
whether he was brought to trial within a reasonable time for the
purpose of Article 5 para. 3 (Art. 5-3) of the Convention. The starting
point is the day on which the applicant was arrested, i.e.
19 August 1992. The applicant was brought to trial already on
8 September 1992.
In these circumstances the Commission finds that the applicant
was brought to trial within a reasonable time for the purposes of
Article 5 para. 3 (Art. 5-3) of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not receive a hearing by an impartial and
independent tribunal. He submits that, as a civilian conscientious
objector, he should have been brought before a civilian court and not
before military courts, the majority of whose members are military
officers, and which generally impose higher sentences than civilian
criminal courts for failure to fulfil military obligations. He also
complains that the position and influence of the office of the
"krijgsauditeur" violate the principle of equality of arms in
proceedings before military courts.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of (...) any criminal charge against him,
everyone is entitled to a (...) hearing (...) by an independent
and impartial tribunal established by law. (...)."
As regards the question whether the applicant was correctly
brought before a military court as opposed to a civilian criminal
court, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with applications alleging that
errors of law or fact have been committed by domestic courts, except
where it considers that such errors might have involved a possible
violation of any of the rights and freedoms set out in the Convention
(cf. No. 17722/91, Dec. 8.4.91, D.R. 69 p. 345).
As regards the substance of the present complaint, the Commission
recalls that, in order to establish whether a judicial body can be
considered "independent", regard must be had, inter alia, to the manner
of appointment of its members and their term of office, to the
existence of guarantees against outside pressure and to the question
whether the body presents an appearance of independence. As to the
question of impartiality, a distinction must be drawn between a
subjective test, whereby it is sought to establish the personal
conviction of a given judge, and an objective test aimed at
ascertaining whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect. In this respect even appearances
may be of a certain importance. The standpoint of the accused in this
respect is important but not decisive. What is determining is whether
this fear can be held to be objectively justified (cf. Eur. Court H.R.,
Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32;
Fey judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 30;
and Holm judgment of 25 November 1993, Series A no. 279-A, p. 14, para.
30).
As to the subjective test, the applicant has not alleged that the
judges involved in the proceedings at issue acted with personal bias.
In any event the personal impartiality of a judge must be presumed
until there is proof to the contrary and in the present case there is
no such proof.
As regards the objective test, the Commission has previously
examined the question whether military courts in Belgium comply with
the requirements of Article 6 para. 1 (Art. 6-1) of the Convention as
regards the independence and impartiality of tribunals (No. 12717/87,
Dec. 8.9.87, D.R. 57 p. 196).
In that case it held that:
"The Commission recalls that although the civilian member
of the court martial is appointed for three months and
although the civilian President of the Military Court
cannot be removed, the four military members of these
courts are appointed for sessions of one month. The
requirement for a judge to be independent does not
necessarily imply that he should be appointed for life or
that he should have security of tenure in law (in other
words, that he cannot be given other duties without his
consent). It is essential, however, that he should not be
subject to any authority in the performance of his duties
as a judge (No. 8209/78, Dec. 1.3.79, D.R. 16 p. 166). The
military members of the military courts cannot be removed
for the duration of their mandate. Even though, as members
of the armed forces, they are subject to the authority of
their hierarchical superiors in their respective units,
when they sit as judges they are not answerable to anyone
about the way in which they administer justice. They are
not subject to any authority in the exercise of their
judicial functions, and these take priority, except in
cases of force majeure, over all other military services
(Article 148 of the Code of Military Criminal Procedure).
Their independence is further guaranteed by the fact that
the part each member plays in the taking of the decision
remains secret, because the decision is taken by the whole
bench and the members are obliged under oath to keep the
deliberations secret.
There is therefore nothing to cast doubt on the fact that
the court martial and the Military Court were, in this
case, independent and impartial tribunals within the
meaning of Article 6 para. 1 (Art. 6-1)."
The Commission finds no reason to take a different view in the
present case as regards the independence and impartiality of the
military courts which dealt with the applicant's case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as the applicant complains that the position and
influence of the office of the "krijgsauditeur" violate the principle
of equality of arms in proceedings before military courts in view of
the influence this office appears to be able to exercise in decisions
by military courts, the Commission notes that this complaint is
unsubstantiated. The Commission does not find that the facts of the
case disclose any indication justifying the conclusion that in the
proceedings at issue the "krijgsauditeur" was placed in a more
advantageous position than the applicant.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Articles 9 and 10 (Art. 9, 10) of
the Convention that, as a Jehovah's witness, he was not exempted from
performing military service and substitute civilian service.
The Commission recalls that the Convention and its Protocols do
not guarantee, as such, any right to conscientious objection and that
Article 9 (Art. 9) of the Convention, which provision guarantees to
everyone the right to freedom of thought, conscience and religion, does
not give conscientious objectors the right to be exempted from military
or substitute civilian service. It does not prevent a Contracting State
from imposing sanctions on those who refuse such service (cf. No.
7705/76, Dec. 5.7.77. D.R. 9 p. 196; No. 10600/83, Dec. 14.10.85, D.R.
44 p. 155; and No. 17086/90, Dec. 6.12.91, D.R. 72 p. 245).
Insofar as the applicant relies on Article 10 (Art. 10) of the
Convention, which provision guarantees to everyone the right to freedom
of expression, the Commission finds no indication in the present case
that there has been any interference with the applicant's exercise of
this right.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
5. The applicant complains under Article 14 (Art. 14) of the
Convention that he is discriminated against on the basis of his
religion, as for the different forms of conscientious objections
against military service certain alternatives have been created, such
as performing military service without having to carry arms and
different kinds of substitute civilian service. However for
conscientious objectors who fully refuse to fulfil their military
obligations ("totaalweigeraars") no specific measure has been taken.
Article 14 (Art. 14) of the Convention provides as follows:
"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."
According to the established case-law, Article 14 (Art. 14) of
the Convention complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since it
has effect solely in relation to "the enjoyment of the rights and
freedoms" safeguarded by those provisions. Although the application of
Article 14 (Art. 14) does not necessarily presuppose a breach of those
provisions, there can be no room for its application unless the facts
at issue fall within the ambit of one or more of the latter (cf. No.
19819/92, Dec. 5.7.94, D.R. 78-A p. 88).
The Commission accepts that the applicant's complaint falls
within the ambit of Article 9 (Art. 9) of the Convention, although the
Convention does not guarantee, as such, a right to conscientious
objection. Article 14 (Art. 14) of the Convention is, therefore,
applicable.
The Convention organs have constantly held that a difference in
treatment between individuals, placed in similar situations, is
discriminatory within the meaning of Article 14 (Art. 14) if it "has
no objective and reasonable justification, that is, if it does not
pursue a "legitimate aim" or if there is not a reasonable relationship
of proportionality between the means employed and the aim sought to be
realised" (cf. Eur. Court H.R., Hoffmann judgment of 23 June 1993,
Series A no. 255-C, pp. 58-59, paras. 31 and 33).
It must first be examined whether the applicant can claim to have
undergone a treatment different from others, placed in a similar
situation.
The Commission notes that the applicant, a so-called "total
objector" refusing to perform both military service and substitute
civilian service on moral grounds, seeks to compare himself with
conscientious objectors who are prepared to fulfil their military
obligations, but who, on moral grounds, either refuse to carry arms or
who refuse to serve in the military forces, as such, but are prepared
to fulfil their military obligations by opting for substitute civilian
service.
The Commission considers that these two situations cannot be
regarded as comparable for the purposes of Article 14 (Art. 14) of the
Convention.
Moreover, the Commission notes 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. If some
citizens were to be exempted without convincing reasons, a question of
discrimination against the other citizens would arise. These
considerations apply with particular force when exemption from military
service is not accompanied by an obligation to perform substitute
civilian service.
The Convention does not prevent a Contracting State from taking
measures to enforce performance of substitute civilian service, or from
imposing sanctions on those who refuse such service (cf. No. 10600/83,
Dec. 14.10.85, D.R. 44 p. 155). The Commission notes that for
conscientious objectors in Belgium different options were offered in
order to enable them to fulfil their military obligations while
respecting their moral convictions as much as possible, a possibility
of which the applicant chose not to avail himself. The fact that no
exemption for both military service and substitute civilian service can
be obtained in Belgium is, in the Commission's view, not in conflict
with Article 14 (Art. 14) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant further claims to be the victim of discrimination
contrary to Article 14 (Art. 14) of the Convention on the ground of
sex, as female Jehovah's witnesses are not punished for their
convictions.
The Commission observes that it does not appear that the
applicant availed himself of the possibility to request the Court of
Cassation to put a preliminary question to the Court of Arbitration on
the compatibility of Section 2 of the Co-ordinated Laws on Military
Service of 30 April 1962, on which provision the compulsory military
service for male Belgian nationals is based, with the constitutional
right to equality. The Commission further observes that, pursuant to
Section 26 para. 2 and Section 28 of the Special Act on the Court of
Arbitration, the Court of Cassation cannot refuse a request to put such
a question to the Court of Arbitration and is bound by the latter
court's finding.
Consequently, a request to the Court of Cassation to put a
question to the Court of Arbitration on the compatibility of the
statutory rule that compulsory military service only exists for male
nationals with the constitutional right to equal treatment must in
principle be regarded as an effective remedy for the purposes of
Article 26 (Art. 26) of the Convention.
It follows that the applicant has not satisfied the condition
laid down in Article 26 (Art. 26) of the Convention and that this part
of the application must be rejected in accordance with Article 27 para.
3 (Art. 27-3) of the Convention.
7. The applicant has also complained under Article 14 (Art. 14) of
the Convention that, for failure to fulfil military obligations,
Belgian military courts impose higher sentences than Belgian civilian
criminal courts in cases concerning conscientious objectors who have
failed to perform substitute civilian service..
The Commission recalls that complaints concerning the length of
sentence passed after due process of law by a judge in possession of
the facts do not generally fall within the scope of the Convention.
However, where a settled policy appears to affect individuals in a
discriminatory fashion issues may arise under Article 5 read in
conjunction with Article 14 (Art. 5+14) of the Convention
(No. 11077/84, Dec. 13.10.86, D.R. 49 p. 170).
In this respect the Commission notes that the applicant has
failed to submit any information indicating that the factual and legal
situation of persons having obtained the status of conscientious
objectors and who are convicted by civilian criminal courts for
subsequently having failed to perform substitute civilian service can
reasonably be regarded as comparable to the factual and legal situation
of persons, who, like himself, have been convicted by a military court
for failure to fulfil military obligations.
This complaint must, therefore, also be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy