AS TO THE ADMISSIBILITY OF
Application No. 11734/85
by Siegfried NICOLUSSI
against Austria
The European Commission of Human Rights sitting in private
on 8 May 1987 the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 June 1985 by
Siegfried NICOLUSSI against Austria and registered on 4 September 1985
under file N° 11734/85;
Having regard to the report provided for in Rule 40 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 an Austrian citizen, born in 1956. He is
primary school teacher and resides in Innsbruck, Austria. Before the
Commission he is represented by his lawyer, Dr. Friedrich Schwank.
Pursuant to Section 5 of the Civilian Service Act
(Zivildienstgezetz) the applicant, for reasons of conscience,
petitioned the Civilian Service Commission (Zivildienstkommission beim
Bundesministerium für Inneres) on 29 April 1983 that he be allowed to
perform an alternative civilian service rather than the otherwise
mandatory military service.
The applicant's petition was heard on 24 August 1983, in a
non-public hearing before the Civilian Service Commission,
5th Senate. In its ruling of the same day, the Commission rejected
the applicant's petition, relying in relevant parts on Section 2 para.
1 in conjunction with Section 6 para. 1 and para. 2 of the Civilian
Service Act.
On 19 October 1983 the applicant appealed against the above
decision to the Civilian Service Appeals Board
(Zivildienstoberkommission), 3rd Senate. Following a non-public
hearing the Appeals Board in its ruling of 26 April 1984, confirmed
the decision of the Civilian Service Commission of 24 August 1983 in
all points.
On 20 August 1984 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof), petitioning, inter
alia, that any conscription notice be given suspensive effect while
his appeal was pending. This the Constitutional Court granted in its
ruling of 28 January 1985. The applicant submitted his completed
complaint to the Constitutional Court on 20 December 1984. In his
complaint, lodged pursuant to Section 144 of the Federal Constitution,
the applicant argued that his constitutionally protected rights had
been violated in the following manner:
- the Civilian Service Commission and the Appeals Board had not
taken sufficient cognizance of their statutory mandate under the
Civilian Service Act, which grants a military service candidate under
certain circumstances the right to perform a civil service;
- his right to equality before the law within the meaning of
Article 2 of the Basic Law (Staatsgrundgesetz), of 21 December 1867
had been violated;
- as set out in Article 14 of the Basic Law and Article 9 of the
European Convention on Human Rights the applicant's right to freedom
of conscience and belief had been violated; and
- his right to be heard by a tribunal established by law within
the meaning of Article 83 para. 2 of the Federal Constitution
(Bundesverfassungsgesetz) had been violated.
In its decision of 4 March 1985 the Constitutional Court
rejected the applicant's complaint, having found no violation of the
constitutionally protected rights invoked by the applicant or of any
other constitutional rights. Concerning the applicant's complaint
regarding a violation of his right to freedom of conscience and belief
under Article 14 of the Basic Law, the Court held that this Article
concerned only religious aspects. Since, however, the applicant had
not relied on such aspects before the Civilian Service Commission and
the Appeals Board it followed that there was no violation of Article 14
of the Basic Law.
On 6 August 1985 the applicant again petitioned the Civil
Service Commission that he be allowed to perform a civil service.
However, on 25 September 1985 the Commission rejected the petition on
the ground that the applicant did not fulfil a formal requirement.
The applicant appealed against this decision to the Civilian
Service Appeals Board which quashed the decision and sent the case
back to the lower instance for reconsideration on the merits.
Accordingly the applicant appeared before the Civilian
Service Commission on 4 July 1986 and was advised on the
same day that he had been recognised as a conscientious objector and
released from his obligation to render military service.
COMPLAINTS
The applicant's complaints relate to the proceedings which
ended with the decision of the Constitutional Court on 4 March 1985.
Although his recognition as a conscientious objector was the objective
which he had been pursuing from the outset the applicant submits that
the fact that he has subsequently been recognised as such does not
rectify or influence the alleged violations of the Convention as
submitted by him and which may be summarised as follows:
The applicant invokes Article 6 para. 1 of the Convention. He
is of the opinion that what is at stake in a civilian service hearing
is a civil right within the meaning of this Article. It is the right
afforded by Section 2 para. 1 of the Civilian Service Act to fulfil a
State's military service obligations in a manner consistent with a
petitioner's conscience and belief.
Furthermore the applicant alleges that the Act as applied did
not afford the Civilian Service Commission and the Appeals Board the
guarantees necessary to uphold the appearance of their independence
from outside pressures, and that in the hearings held relative to the
applicant's petition before the Civilian Service Commission and the
Civilian Service Appeals Board, the impartiality of their organs was
capable of appearing open to doubt, constituting a violation of
Article 6 para. 1 of the Convention.
The applicant also invokes Article 9 of the Convention. He
alleges that since the Civilian Service Commission and the Appeals
Board established under the Act to rule on civilian service
candidates' petitions, do not give the appearance of functioning with
the requisite degree of independence within the meaning of Section 43
para. 4 of the Act and Article 6 para. 1 of the Convention, the
applicant's right under Article 9 of the Convention to freedom of
thought and conscience has not been respected.
Under Article 14 in conjunction with Article 9 of the
Convention the applicant submits that the Constitutional Court's
interpretation of Article 14 of the Basic Law (limited to religious
aspects), when taken in conjunction with Article 9 of the Convention,
constitutes a discrimination vis-à-vis those who choose to
substantiate their pacifist convictions in a civilian service
petition through utilisation of a more secular line of persuasion.
Such candidates are therefore discriminated against when compared with
those in an analogous position who choose to support their petition by
reference to religious belief and to religion-derived doctrine.
THE LAW
1. The applicant has complained of the proceedings concerning his
request for permission to perform civilian service.
The applicant has submitted that, when determining whether a
person should be recognised as a conscientious objector or not, the
Civilian Service Commission and the Appeals Board determine a civil
right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Furthermore, the applicant alleges that their independence appeared to
be open to doubt in contravention of Article 6 para. 1 (Art. 6-1) of the
Convention.
From the case-law of the Commission, however, it is clear that
"civil rights" do not include those rights or obligations which may
exist for the individual, not in his capacity as a private person, but
as a citizen, and which relate to the essence of public law. In this respect
the Commission has found Article 6 para. 1 (Art. 6-1) to be inapplicable to
proceedings concerning military service and alternative service (e.g. Nos.
3435-38/67, Dec. 19.7.68, Yearbook 11, p. 562 (604), No. 8556/79, Dec. 3.10.79,
unpublished and No. 8881/80, Dec. 6.7.80, unpublished. Consequently Article 6
(Art. 6) of the Convention is not applicable in the present case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant has also complained of an unjustified
interference with his right to freedom of thought and conscience under
Article 9 (Art. 9) of the Convention and of discrimination, as regards the
exercise of this right, contrary to Article 14 (Art. 14) of the Convention.
Furthermore, he has complained that, since the Austrian
Constitutional Court allegedly refused to consider his case under
Article 9 (Art. 9) of the Convention when he initially tried to be exempted
from military service and since the Court limited its examination
under Article 14 of the Basic Law to religious matters not invoked by
the applicant, he was not afforded an effective remedy as secured to
him under Article 13 (Art. 13) of the Convention.
The Commission notes, however, that the applicant has never
been asked to do military service and that he has, subsequent to the
proceedings of which he complains and subsequent to the introduction
of his application to the Commission, successfully applied to be
released of such future duty. In such a situation the Commission
finds that any possible defects that may have existed prior to his
successful application must be considered to have been rectified by
his being allowed to perform a civilian service as requested by him.
In these circumstances it follows that the applicant can no longer
claim to be a victim of a violation of the Convention.
This part of the application is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)