Lexploria

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)

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SPOTTL v. AUSTRIA

SPOTTL v. AUSTRIA

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