AS TO THE ADMISSIBILITY OF
Application No. 23378/94
by P.S. V.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 December 1993
by P.S. V. against Finland and registered on 2 February 1994 under file
No. 23378/94;
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 Finnish citizen, born in 1960. He is an
industrial cleaner and resides in Barcelona, Spain. Before the
Commission he is represented by Mr. Juha Tapio Keltti, a lawyer
practising in Helsinki, Finland.
The facts of the case, as they can be established on the basis
of the submissions of the applicant and the documents available, may
be summarised as follows.
A. The particular circumstances of the case
On 21 October 1979 the applicant was called up for military
service. He was then granted a postponement concerning his military
service. He was granted further postponements on 11 November 1982 and
on 11 March 1985, the last postponement covering the period until
31 December 1987.
Under a so-called clearance certificate (esteettömyystodistus)
of 30 October 1987 given to allow the applicant to obtain a residence
permit abroad the applicant was permitted to stay abroad until
11 October 1988. The applicant's passport was valid until the same day.
On 21 October 1987 the head of the Military District of Kajaani
ordered the applicant to report for military service on 11 October 1988
in the Border Guard Department of Kajaani.
On 19 October 1988 the Headquarters of the Military District sent
the applicant a letter stating that he had not reported for military
service as ordered and requesting him to contact the Finnish Embassy
in Spain.
Further on 19 October 1988 the Headquarters of the Military
District sent the Finnish Embassy in Spain a letter according to which
the order concerning the applicant's military service had been sent to
his address in Barcelona as a registered letter in October 1987 and
again in the spring of 1988. Both letters were, however, returned.
Further, on 31 August 1988 a similar letter was sent to the applicant
trough the Army Headquarters' Office for Foreign Affairs. The
Headquarters of the Military District requested the Embassy to serve
the order on the applicant in a manner capable of verification.
In a letter dated 20 January 1989 a secretary, K, at the Finnish
Consulate General in Barcelona explained the efforts she had made in
order to serve the letter on the applicant. She stated that she had
sent a copy of the order to the applicant with four different letters
during November and December 1988, the last of the letters being a
registered one. None of these letters were returned. She had called the
applicant twice at his home, but she had been told once by a man,
probably the applicant, and once by a woman, probably the applicant's
cohabitee, that the applicant did not live in the apartment any more.
Lastly on 10 January 1989 she had gone to the applicant's apartment.
The names of the applicant and his cohabitee were still on the postbox
downstairs. K had then rung the applicant's doorbell and given the
original papers to a woman, probably the applicant's cohabitee, who had
opened the door, although the latter did not want to take the papers.
Apparently a new order has been given according to which the
applicant should report for military service on 9 February 1989 in the
Light Infantry Brigade of Sodankylä.
On 21 January 1991 the Headquarters of the Military District sent
a request for investigation to the Central Criminal Investigation
Police. According to this request the applicant had applied for a
passport and a clearance certificate. Because the applicant had reached
the age of 30 he was no longer obliged to report for military service.
Further it was stated that the applicant was wanted for questioning by
the police.
On 11 April 1991 the Criminal Police of Kajaani questioned the
applicant in Kajaani, Finland about not reporting for military service.
In April 1991 the Headquarters of the Military District of
Kajaani sent the minutes of the preliminary investigation to the
Military Lawyer at the Headquarters of the Military County of Northern
Finland in order to have charges brought against the applicant on the
grounds that the applicant had not reported for military service on
9 February 1989.
The applicant was charged with desertion (karkaaminen) committed
from 9 February 1989 to 15 September 1990 by virtue of chapter 45
section 4 subsection 2 of the Penal Code (rikoslaki) which, together
with subsection 1, reads in so far as relevant as follows:
(translation)
"A soldier who without permission leaves the troop or place
in which he shall serve or does not report for duty there
in the prescribed time, shall be convicted of illegal
absence ...
If the absence referred to in subsection 1 has lasted at
least five days and has caused or might have caused an
interruption of fundamental significance in the soldier's
training or any other fundamental disadvantage to the
service, the offender shall be convicted of desertion and
sentenced to imprisonment for a maximum of one year or to
disciplinary punishment."
The case was heard by the District Court (raastuvanoikeus) of
Helsinki on 29 October 1991 according to military court procedure. This
meant, by virtue of the Act on Military Court Proceedings (sotilas-
oikeudenkäyntilaki), that the prosecutor was a Military Lawyer and that
of one of the three judges, and at the same time the presiding judge,
was a civilian judge, while the other two were military officers. The
applicant appeared in person before the District Court. He was assisted
by counsel, whom the Court, by virtue of section 28 of the Act on
Military Court Proceedings, ordered to be the applicant's counsel in
the case. The applicant pleaded not guilty to the charge of desertion
on the grounds that he had not received any order to report for
military service.
On the grounds that the prosecutor had asked for an adjournment
the case was further heard on 17 December 1991. The applicant and his
counsel were present at the hearing. The District Court heard evidence
from the aforementioned secretary K about the efforts she had made to
notify the applicant of the order in question.
The prosecutor stated that the applicant was guilty of desertion
and in any case he had acted contrary to section 41 of the Military
Service Act (asevelvollisuuslaki) by fraudulently avoiding military
service. The prosecutor requested that the case be transferred to such
division of the District Court as had jurisdiction over charges under
the Military Service Act. The applicant pleaded not guilty to the
charge of avoiding military service on the grounds that he had not
acted fraudulently. He requested an adjournment for hearing a witness.
The District Court decided to transfer the case to be dealt with
by a division composed in the ordinary way of three civilian judges.
On 31 December 1991 the Military Lawyer, on the grounds that
avoiding military service was not within his competence, asked the City
Prosecutor to bring charges against the applicant.
The City Prosecutor drew up a written indictment of one page and
charged the applicant with avoiding military service between
1 January 1988 and 31 December 1990 contrary to section 41 of the
Military Service Act which reads in so far as relevant as follows:
(translation)
"He who, in order to be freed from the liability to serve
military service, ... injures himself or causes damage to
his health or attempts to do so or for the said purpose
gives false information or in other ways acts fraudulently
shall be convicted of avoiding military service and
sentenced to a fine or to imprisonment for a maximum of one
year ..."
On 27 February 1992 the District Court heard the case as an
ordinary criminal case. The applicant requested cost-free legal
proceedings. A certificate as to the applicant's financial situation,
dated 24 October 1991, was submitted to the District Court. The
District Court decided, in accordance with the Act on Cost-free Legal
Proceedings, not to grant the applicant cost-free legal proceedings on
the grounds that he did not fulfil the financial requirements therefor.
The court heard the evidence from the applicant's cohabitee R-T,
who gave her testimony in Spanish. She had a translator as an
interpreter. Her evidence was tape-recorded. According to the minutes
of the hearing the chair of the District Court reminded R-T of her duty
to tell the truth and after R-T affirmed that she was telling the truth
the chair remarked that somebody in the case was "talking rubbish".
The applicant declared that he was ready for the case to be
decided.
Thereupon, on 27 February 1992 the District Court dismissed the
charge of desertion but found the applicant guilty of avoiding military
service and sentenced him to eight months' imprisonment. The District
Court stated inter alia that the applicant had, when living in
Barcelona, from 1 January 1988 to 31 December 1990, after the
postponements of his military service had expired, fraudulently been
evading the efforts of the clerk at the local Finnish Consulate General
to contact him concerning his military service by failing to answer
four letters, by giving three times, personally or through others,
false information concerning his address, by failing to renew his
passport after it had expired on 10 November 1988 and by thereafter
deliberately staying with his family in Spain without a residence
permit until the beginning of 1991, when he could no longer be ordered
to report for military service. Soon after this he had applied for a
clearance certificate from his Military District. Because of his
actions and because he had reached the age of 30 on 15 September 1990
it was no longer possible to order him to report for military service
after 31 December 1990. He has therefore been totally freed from
military service. The District Court based its judgment on the evidence
given by K. It did not find the applicant's explanation that he had not
received the letters as described by K reliable, taking into account
that he had had the same permanent address in Spain from 1986 to
March 1991. However, with regard to the desertion, the District Court
stated that it had not been proved that the applicant had been notified
of the order to report for military service.
The applicant, assisted by counsel, appealed to the Court of
Appeal (hovioikeus) of Helsinki. He denied being guilty of avoiding
military service. The applicant stated that the witness K had not been
able to prove that the applicant had been aware that she was trying to
serve him an order concerning military service. He had not received any
letters or spoken with K. He had not acted fraudulently. He had
received a positive statement from the Spanish Ministry of Labour
concerning his work permit, which in his opinion meant in practice the
same as receiving the work permit itself. Furthermore, he had not been
in need of a passport. The Spanish postal service was not reliable and
there were also problems with the telephone lines. He attached to his
appeal a written statement given by his father concerning the troubles
his father had had when calling the applicant or posting things to him.
On 15 September 1992 the Court of Appeal rejected the appeal. The
Court of Appeal stated further that the above-mentioned written
statement did not contain such relevant information that there would
be reason to hear evidence from the person who had given it. The Court
of Appeal therefore by virtue of chapter 17 section 11 of the Code of
Judicial Procedure (oikeudenkäymiskaari) took no account of the
statement.
On 2 June 1993 the Supreme Court refused the applicant leave to
appeal. Furthermore, the Supreme Court stated that the grant of legal
aid did not cover the charge of avoiding the military service but only
the desertion. The proceedings in the Supreme Court were not based on
the Act on Military Court Proceedings. Therefore the Supreme Court
decided that the applicant's counsel's fees were not to be paid from
the public funds.
B. Relevant domestic law
The Court of Appeal may, if it considers it necessary, hold an
oral hearing in a case in which an appeal against the judgment of the
court of first instance has been lodged. Such a judgment cannot, as
regards the charges brought against an accused, be amended by the Court
of Appeal following a re-evaluation of the evidence without a
re-hearing having been held, unless the sentence imposed by the Court
of Appeal amounts only to fines or unless a re-hearing would clearly
be unnecessary. In assessing the latter special regard shall be had to
the interests of the accused (chapter 26, sections 7 and 8 of the Code
of Judicial Procedure).
COMPLAINTS
1. The applicant complains, under Article 3 of the Convention, that
the proceedings which violated several articles of the Convention, the
severe punishment and the way in which the applicant's witnesses,
namely his cohabitee and his father, were treated, constitute, taken
as a whole, degrading treatment.
2. The applicant complains that he did not have a fair trial. He
complains under Article 6 para. 1 of the Convention that the District
Court was not independent and impartial since the District Court
obtained the main evidence while sitting as a military court. He
further maintains that the hearing of his evidence was insufficient.
He also maintains that the concept of a fair trial includes that due
reasons shall be given for the judgment. He submits that the charges
against him were raised after an unreasonably long period. Because the
conviction was based on slender evidence, the Court of Appeal should
have arranged an oral hearing.
The applicant also complains under Article 6 para. 2 of the
Convention that he was not presumed innocent. He maintains in this
respect that the District Court expected him to prove his innocence.
Furthermore, he complains of infringements of Article 6 para. 3
(a), (b), (c), (d) and (e) of the Convention. He maintains that he was
not informed satisfactorily of the nature and cause of the accusation
against him, especially when he had to answer to a different charge
than that contained in the original indictment. The amendment of the
charge during the proceedings caused that he did not have adequate time
for the preparation of his defence. He was refused the right to legal
assistance and to cost-free proceedings. The witnesses were not heard
under the same conditions since the chair, on the one hand, pressed the
applicant's witness and, on the other hand, put leading questions to
the prosecution witness. In addition, the translation of the evidence
given by the applicant's witness was imperfect and this should be taken
into account at least when evaluating the fairness of the proceedings
and discrimination as a whole.
The applicant complains further under Article 13 of the
Convention that he did not have an effective remedy before a national
authority since the Court of Appeal did not arrange an oral hearing nor
take into account, even in writing, the statement given by his father,
and since the Supreme Court refused the applicant leave to appeal.
3. The applicant complains under Article 7 para. 1 of the Convention
that the relevant provision of the Military Service Act was not
detailed and clear enough to guarantee such predictability of its
application that the act could constitute a criminal offence. He
further maintains that, at least since 1984, no one has been convicted
by virtue of the provision in question.
4. Finally, the applicant complains under Article 14 of the
Convention that he has been discriminated against in comparison with
others who have been exempted de jure or de facto from military
service. He was convicted in a discriminatory way when he was
exercising his rights concerning private and family life guaranteed by
the Convention by living, studying, working and building a family
abroad. The Finnish authorities demanded that he should act in a way
which would have been unusual in his place of residence and thus
discriminated against him on the grounds of different culture.
5. The applicant claims a compensation of FIM 60,000. He further
maintains that the aim of his complaint is also to get the provision
in question quashed.
THE LAW
1. The applicant complains of several infringements of Article 6
(Art. 6) of the Convention in connection with the criminal proceedings
instituted against him. He also invokes Article 13 (Art. 13) of the
Convention in this context. The Commission considers that these
complaints fall to be examined under Article 6 (Art. 6) of the
Convention which, as far as relevant, reads as follows:
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of
the accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be
given it free when the interests of justice so
require;
d. to examine or have examined witnesses against
him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as
witnesses against him;
e. to have the free assistance of an interpreter if
he cannot understand or speak the language used in
court."
a) The applicant first complains about the lack of an oral hearing
in the Court of Appeal.
In this respect the Commission notes Finland's reservation to
Article 6 (Art. 6) which reads, in so far as relevant, as follows:
"For the time being, Finland cannot guarantee a right to an
oral hearing in so far as the current Finnish laws do not
provide such a right. This applies to:
1. proceedings before the Courts of Appeal, ... in
accordance with Chapter 26 Sections 7 and 8, ... of the
Code of Judicial Procedure ... "
The Commission observes that chapter 26, section 7 of the Code
of Judicial Procedure does not provide a right to an oral hearing in
appeal proceedings in the Court of Appeal.
The Commission further observes that under chapter 26, section 8
of the Code of Judicial Procedure a judgment of a court of first
instance cannot, as regards the charges brought against an accused, be
amended by the Court of Appeal following a re-evaluation of the
evidence without a re-hearing having been held, unless the sentence
imposed by the Court of Appeal amounts only to fines or unless a
re-hearing would clearly be unnecessary. In the instant case the
applicant's conviction was not amended on appeal.
Under Finnish law the applicant was not entitled to a hearing
before the Court of Appeal. The Commission finds that Finland's
reservation covers this complaint.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
b) The applicant complains about the length of the proceedings.
The proceedings began with the questioning of the applicant by
the police on 11 April 1991 and ended on 2 June 1993 when the Supreme
Court refused the applicant leave to appeal. Thus the length of the
proceedings was approximately two years and two months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the
case and having regard to the following criteria: the complexity of the
case, the conduct of the parties and that of the authorities dealing
with the case (Eur. Court H.R., Vernillo judgment of 20 February 1991,
Series A no. 198, p. 12, para. 30).
The Commission notes that the case was not very complex as
regards either the legal issues or the facts. The Commission has not
overlooked the fact that it took about eight months before the charge
of avoiding military service was brought against the applicant.
However, the proceedings in the District Court lasted about three
months after this, and the proceedings in the Court of Appeal and in
the Supreme Court lasted altogether about one year and three months.
Taking into account that the case was heard at three instances and that
the proceedings lasted altogether two years and two months the
Commission, making an overall assessment of the circumstances of the
case, considers that a reasonable time was not exceeded.
As far as the other complaints are concerned the Commission
recalls that the guarantees in paragraphs 2 and 3 are specific aspects
of the right to a fair trial set forth in paragraph 1 (cf. for example
Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series
A no. 110, p. 14, para. 29). Accordingly, the Commission will have
regard to these aspects when examining the facts under paragraph 1 of
Article 6 (Art. 6-1). The Commission further recalls that it must
consider the proceedings as a whole. Its task is to ascertain whether
the proceedings in their entirety were fair (cf. for example Eur. Court
H.R., Stanford judgment of 23 February 1994, Series A no. 282-A, p. 10,
para. 24).
c) The applicant has questioned the independence and impartiality
in particular with regard to the District Court functioning as a
military court. The Commission notes, however, that the charge of
avoiding military service was heard by the District Court sitting as
an ordinary court composed of three civilian judges. The fact that the
witness K, whose testimony played an important role in the case, was
heard by the District Court in its military composition, does not
disclose any appearance of a violation of the Convention. In this
regard the Commission notes that the witness was heard in the presence
of the applicant and his counsel (see p. 3) and that the presence of
military members on the bench of a court does not as such make a
tribunal partial within the meaning of Article 6 (Art. 6) (cf. Eur.
Court H.R., Engel and Others judgment of 1 October 1975, Series A no.
22, p. 37, para. 89).
d) The applicant further complains that the District Court did not
give proper reasons for its judgment.
The Commission notes that the District Court set out the facts
and stated the relevant provision on which the judgment was based.
e) The applicant has raised the question of a fair trial with regard
to the presumption of innocence. He maintains in this respect that the
District Court shifted the burden of proof from the prosecution to the
applicant.
The Commission notes that the District Court heard all the
witnesses that the parties had requested should be heard and based its
judgment on this evidence. The Commission finds that no evidence has
been adduced to show that the applicant's right to the presumption of
innocence was violated.
f) The applicant maintains that he was not informed satisfactorily
of the nature and cause of the accusation against him especially with
regard to the charge of avoiding military service and that he did not
have adequate time for the preparation of his defence.
The Commission notes that the applicant was orally charged with
avoiding military service in the District Court on 17 December 1991 in
the presence of his counsel. This charge was based on the same facts
as the previous charge of desertion but it was based on a different
provision. A written indictment was also drawn up. The case was then
heard on 27 February 1992, i.e. two months and ten days after the
applicant had been notified of the charge of avoiding military service.
The Commission further notes that the applicant and his counsel
declared themselves to be ready for the case to be decided.
g) The applicant submits further that he was refused the right to
legal assistance and to cost-free proceedings.
The Commission recalls that unlike the rights embodied in other
provisions of Article 6 para. 3 (Art. 6-3), the right to free legal
assistance is not absolute; such assistance is to be provided only if
the accused "has not sufficient means to pay" (cf. Eur. Court H.R.,
Croissant judgment of 25 September 1992, Series A no. 237-B, p. 34,
para. 33).
The Commission notes that the District Court refused the
applicant free legal assistance on the grounds that the applicant did
not fulfil the relevant financial requirements.
h) The applicant complains about the hearing of witnesses. He
maintains in this respect that the chair did not treat his witness in
the same way as the prosecution witness and that the evidence given by
his witness was not properly translated.
The Commission recalls that, as a rule, it is for the national
courts to assess the evidence before them. The Commissions's task is
to ascertain whether the proceedings considered as a whole, including
the way in which evidence was taken, were fair (cf., for example Eur.
Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194,
p. 11, para. 31).
The Commission notes that both the prosecution witness and the
applicant's witness were heard in the presence of the applicant and his
counsel. Furthermore, the applicant did not ask for an adjournment in
order for the prosecution witness to be heard again. The Commission
recalls that Article 6 para. 3 (e) (Art. 6-3-e) does not concern the
interpretation of witness evidence. The Commission also notes that the
applicant did not ask for an adjournment in order to find another
interpreter.
The Commission finds, however, that the complaint may be
interpreted as to refer also to the question of impartiality with
regard to the questioning judge in the District Court. The Commission
has therefore examined the complaint also from this point of view.
i) The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) must be determined according
to a subjective test and also according to an objective test (cf. Eur.
Court H.R., Fey judgment of 24 February 1993, Series A no. 255-A,
p. 12, para. 28). As regards the subjective test, the Commission and
the Court of Human Rights have constantly held that the impartiality
of a judge must be presumed until the contrary is established (cf. for
example Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment
of 23 June 1981, Series A no. 43, p. 25, para. 58).
In the present case it is true that the questioning judge
reminded the applicant's witness of the importance of telling the
truth. The Commission finds, however, that this does give any
legitimate suspicion of the judge being partial. Neither does the
Commission find any other evidence which could raise doubt as to the
judge's subjective or objective impartiality.
In conclusion, the Commission considers that the proceedings as
a whole do not disclose that the applicant was deprived of a fair trial
within the meaning of Article 6 (Art. 6) of the Convention. It follows
that the application, in so far as concerns complaints b) - i), is
manifestly ill-founded and must be rejected in pursuance of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant complains that the relevant provision of the
Military Service Act was not detailed and clear enough to guarantee the
predictability of its application. He invokes Article 7 para. 1
(Art. 7-1) of the Convention, which reads in so far as relevant as
follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed..."
The Commission recalls that Article 7 para. 1 (Art. 7-1) of the
Convention embodies the principle that the law alone can define a crime
and prescribe a penalty and the principle that the criminal law must
not be widely construed to an accused's detriment, for example by
analogy; it follows from this that an offence must be clearly defined
in law. This condition is satisfied where the individual can know from
the wording of the relevant provision and, if need be, with the
assistance of the courts' interpretation of it, what acts and
omissions will make him liable. The wording of many statutes is not
absolutely precise. The need to avoid excessive rigidity and to keep
pace with changing circumstances means that many laws are inevitably
couched in terms which, to a greater or lesser extent, are vague (cf.
Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A
no. 260-A, p. 22, para. 52 and p. 19 para. 40).
In the present case, the Commission has examined whether the act
committed by the applicant constituted an offence under Finnish law as
it stood. In this respect the Commission notes that the definition of
the offence of avoiding military service given in section 41 of the
Military Service Act comprises, inter alia, giving false information
and other ways of acting fraudulently in order to be freed from the
liability to carry out military service. The Commission notes that the
basis for the conviction was, on the one hand, that the applicant had
given false information and, on the other hand, matters falling under
the latter part of the definition.
The Commission notes the applicant's allegation that the
provision in question has seldom been applied. However, the Commission
considers that, having regard firstly to the wording of the provision
in question, and secondly to the application of that provision in the
present case, this complaint does not disclose any appearance of a
violation of Article 7 (Art. 7) 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.
3. The applicant complains, under Article 14 (Art. 14) of the
Convention, that he has been discriminated against in comparison with
others who have been exempted from military service. He also maintains
that the Finnish authorities demanded that he should act in a way which
would have been unusual in his new place of residence.
As far as relevant Article 14 (Art. 14) of the Convention reads
as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as ... national or social origin ... or other
status."
The Commission recalls that Article 14 (Art. 14) affords
protection against discrimination. For a claim of violation of this
Article to succeed, it has to be established, inter alia, that the
situation of the alleged victim can be considered similar to that of
persons who have been better treated (cf. Eur. Court H.R., Fredin
judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).
The Commission finds that the applicant was not in a similar
situation to that of other persons who may have been exempted from
military service on various grounds. The Commission has, finally,
considered the applicant's complaint as regards discrimination on the
grounds of the applicant's national origin and his culture but has
found no basis for a finding that Article 14 (Art. 14) of the
Convention was violated.
It follows that this part of the complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains that the proceedings instituted against
him, taken as a whole, subjected him to degrading treatment in
violation of Article 3 (Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission notes that the proceedings had as their object to
try the criminal case instituted against the applicant. The proceedings
did not denote any contempt or lack of respect for the personality of
the applicant and they were not designed to, and did not, humiliate or
debase him (cf. for example, Eur. Court H.R., Albert and Le Compte
judgment of 10 February 1983, Series A no. 58, p. 13, para. 22). The
proceedings cannot therefore be regarded as degrading.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy