AS TO THE ADMISSIBILITY OF
Application No. 22956/93
by Thomas SPÖTTL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, 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
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 10 September 1993
by Thomas SPÖTTL against Austria and registered on 19 November 1993
under file No. 22956/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 28 April 1995 and the observations in reply submitted by
the applicant on 5 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1963 and residing
in Feldkirch (Austria).
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 11 July 1991 an induction order (Einberufungsbefehl) of the
Vorarlberg Military Authority (Militärkommando) by which the applicant
was ordered to perform military service was served on him.
On 22 July 1991 the applicant filed a request with the Federal
Minister for Internal Affairs (Bundesminister für Inneres) for
recognition as a conscientious objector.
On 13 November 1992 the Federal 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).
On 11 December 1992 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof) against the Minister's
decision. He complained that the duty to perform civilian service
constituted a discrimination on the ground of sex prohibited by Article
4 in conjunction with Article 14 of the Convention as women were not
subject to such a duty.
On 14 June 1993 the Constitutional Court, referring to its
earlier case-law, declined to entertain the applicant's complaint for
lack of sufficient prospects of success and decided to remit the case
to the Administrative Court (Verwaltungsgerichtshof).
On 23 November 1993 the Administrative Court rejected the
applicant's complaint.
On 8 April 1994 the Federal Minister for Internal Affairs ordered
the applicant to begin his civilian service in an institution for
disabled persons on 1 June 1994.
On 25 April 1994 the applicant lodged a further complaint with
the Constitutional Court against the Minister's decision of 8 April
1994 and also requested that suspensive effect be granted.
On 25 May 1994 the Constitutional Court refused to grant
suspensive effect.
B. Relevant domestic law
Article 9a para. 3 of the Federal Constitution reads as follows:
"Every male Austrian citizen is liable for military service.
Conscientious objectors who refuse the fulfilment of compulsory
military service and are exonerated therefrom must perform an
alternative service. Details are regulated by ordinary law."
Section 15 para. 1 of the Military Service Act (Wehrgesetz) reads
as follows:
"Only male Austrian citizen, who have attained the age of 18
years and have the necessary physical and mental qualifications
for service in the Federal Army can be dafted into the Federal
Army."
Section 2 of the Civilian Service Act (Zivildienstgesetz) reads
as follows:
"Persons liable for military service can, on request, be
exonerated from the duty to perform military service and be
liable to perform civilian service if they refuse on serious and
credible grounds to use force of arms against others, save for
legitimate self defence or defence of others, and therefore would
be in a profound moral conflict if they performed military
service."
In a decision of 2 October 1991 the Constitutional Court, upon
a complaint lodged by a woman whose request to join the Federal Army
had been rejected by the administrative authorities, found that a
difference in treatment regarding military service between men and
women was in accordance with the Federal Constitution. It held that
the obligation imposed only on men to perform military service was
provided for in Article 9a para. 3 of the Federal Constitution and as
a constitutional provision limited the scope of application of other
constitutional provisions, in particular the principle of equality.
COMPLAINTS
The applicant complains under Article 14 in conjunction with
Article 4 para. 2 of the Convention of discrimination on the ground of
sex in that he as a man was liable to perform civilian service while
women had no such duty.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 September 1993 and
registered on 19 November 1993.
On 17 January 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
28 April 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 5 July 1995.
THE LAW
1. The applicant complains under Article 14 in conjunction with
Article 4 para. 2 (Art. 14+4-2) of the Convention of discrimination on
the ground of sex in that he as a man was liable to perform civilian
service while women had no such duty.
Article 4 para. 2 and 3 (b) (Art. 4-2, 4-3-b) of the Convention
reads as follows:
"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:
(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;"
Article 14 (Art. 14) of the Convention, insofar as relevant,
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 sex, ..."
The Government submit that the applicant has failed to introduce
his complaint with the Commission within the six months' time-limit
under Article 26 (Art. 26) of the Convention. The right to perform
civilian service is directly liked to the military service obligation
under the Federal Constitution as civilian service is an alternative
form of service for conscientious objectors. An obligation to perform
civilian service can only apply to persons who at the same time are
also subject to military duty. Since women are not liable to military
service they are not liable to civilian service either. Therefore, the
applicant should have brought an application with the Commission
against the induction order served on him on 11 July 1991.
This is disputed by the applicant. He submits that exemption
from military service did not lead automatically to the obligation to
perform civilian service as exceptions are made for students of
theology who prepare for the office of a priest and for members of the
religious community of Jehovah's Witnesses. The Minister's decision
of 13 November 1992 to recognize him as a conscientious objector was
the first domestic decision which imposed on him a service duty in
violation of the prohibition of gender discrimination. Therefore, he
had lodged his application in time.
The Commission observes that in Austria - as in other European
countries - the obligation to perform civilian service is directly
linked to the obligation to do military service as, in general, a
person is only liable to civilian service if he is liable to compulsory
military service. The applicant was served on 11 July 1991 with an
induction order. However, this induction order did not take effect as
the applicant filed a request for recognition as a conscientious
objector. Only after this request had been granted by the authorities,
did the applicant become effectively liable for compulsory (civilian)
service. Having exhausted domestic remedies against this decision the
applicant introduced his complaint with the Commission.
In these circumstances the Commission cannot find that the
applicant should have introduced an application with the Commission
already against the induction order. It follows that the applicant has
complied with Article 26 (Art. 26) of the Convention.
2. The Government submit that the applicant cannot rely on Article
14 of the Convention in conjunction with Article 4 (Art. 14+4) since
under paragraph 3 (b) of Article 4 (Art. 4-3-b) the entire complex of
military and alternative non-military service is excluded form the
scope of the Convention.
This is disputed by the applicant.
The Commission recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and Protocols. Although the application of Article 14
(Art. 14) of the Convention does not 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 (Eur.
Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,
Series A no. 94, p. 35, para. 71).
The Commission recalls further that para. 3 of Article 4
(Art. 4-3) is not intended to "limit" the exercise of the right
guaranteed by para. 2, but to "delimit" the very content of that right,
for it forms a whole with paragraph 2 and indicates what the term
'forced or compulsory labour' shall not include (Eur. Court H.R.,
Karlheinz Schmidt judgment of 18 July 1994, Series A no. 291-B, p. 32,
para. 22). The limitations permitted, particularly any national
legislation concerning compulsory military service and substitute
service by conscientious objectors, must satisfy the requirements of
Article 14 (Art. 14), that is to say, be non-discriminatory both in
their character and in their application (Grandrath v. Germany, Comm.
Report 29.6.67, para. 40, Yearbook 10 p. 626 at p. 680).
It follows that Article 14 read in conjunction with Article 4
paras. 2 and 3 (b) (Art. 14+4-2, 14+4-3-b) applies.
3. The Government submit that the difference in treatment between
men and women as regards the obligation to perform military service or
alternative civilian service is justified. The obligation to perform
civilian service cannot be considered in isolation. It has to be
examined in the light of the obligation to perform military service
since a compulsory civilian service without an underlying duty to
perform military service would not be in accordance with Article 4
paras. 2 and 3 (b) (Art. 4-2, 4-3-b) of the Convention. As regards the
obligation to perform military service the difference in treatment
between men and women is justified because of the difference between
the sexes. Furthermore, a general European standard exists according
to which women should not be subject to any kind of mandatory service
of a military nature, as a comparison among European states shows that
none of them makes compulsory military service incumbent on women.
A number of countries have merely made it possible for women to perform
voluntary tasks within the military service.
The applicant submits that the military service makes high
demands on the physical and mental capability of the persons serving.
However, in this respect it can be compared to other activities which
had previously been restricted to men, like serving in the police. The
difference in treatment between persons eligible for serving in the
police and in the army is not plausible. Furthermore, the mere fact
that military service has for a long time been considered an exclusive
domain of men cannot justify gender discrimination today.
The Commission recalls that Article 14 (Art. 14) protects
individuals, placed in analogous situations, from discrimination (see
Eur. Court H.R., van der Mussele judgment of 23 November 1983, Series
A no. 70, p. 22, para. 46). A difference in treatment will not be
discrimination prohibited by Article 14 (Art. 14) unless it has no
objective and reasonable justification, or unless there is no
reasonable relationship of proportionality between the means employed
and the aim sought to be realised (see Eur. Court H.R., Darby judgment
of 23 October 1990, Series A no. 187, p. 12, para. 31). 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 of
appreciation will vary according to the circumstances, the subject-
matter and its background (No. 17086/90, Dec. 6.12.1991, D.R. 72 p.
245). In the organisation of their national defence the Contracting
States are entitled to a wide margin of appreciation (No. 19583/92,
Dec. 20.2.95, D.R. 80-A p. 38).
The Commission notes that the applicant complains essentially
about gender discrimination with regard to the obligation under
Austrian law to perform civilian service. However, the Commission
observes that the obligation to perform civilian service applies to all
persons who, as conscientious objectors, are exempt from the obligation
to perform military service. In view of the fact that women are not
obliged to perform military service, they are consequently, as regards
the civilian service replacing it, not in the same situation as men.
Insofar the applicant may be understood to complain also about
a difference in treatment between men and women with regard to the
obligation to perform military service to which the obligation to
perform civilian service is an accessory obligation, the Commission is
of the opinion that such difference in treatment is justified by
objective reasons. Having regard to the wide margin of appreciation
afforded to the Contracting States in relation to the organisation of
their national defence, the Commission observes that a common standard
exists among the Contracting States according to which women are not
liable to mandatory military service. Such a standard takes into
account continuing traditions in the field of national military
defence, the opinion of the people and the public interest in
maintaining an effective national defence system of those Contracting
States which, like Austria, have based their system of national defence
on compulsory military service.
In the Commission's view the present case must be distinguished
from the situation in the Schmidt case, where the obligation for men
to serve in the fire brigade only existed in theory, in view of the
sufficient number of volunteers. Thus, having regard to the fact that
only men were liable to a fire service levy as a compensatory
contribution, the Court's finding in that case was limited to the
assertion that a difference in treatment on the ground of sex in the
imposition of a financial burden could not be justified (Karlheinz
Schmidt judgment of 18 July 1994, loc. cit., p. 33, para. 28).
The Commission therefore finds that there is no appearance of a
violation of the applicant's rights under Article 14 in conjunction
with Article 4 paras. 2 and 3 (b) (Art. 14+4-2, 14+4-3-b) 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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy