Lexploria

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)

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NICOLUSSI v. AUSTRIA

NICOLUSSI v. AUSTRIA