Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24630/94

by Waldo J.-P. HEUDENS

against Belgium

The European Commission of Human Rights sitting in private on

22 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

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 April 1994 by

Waldo J.-P. HEUDENS against Belgium and registered on 19 July 1994

under file No. 24630/94;

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 Belgian national, born in 1962, and resides

in Kortenberg, Belgium. He is a Jehovah's witness. Before the

Commission he is represented by Mrs. L. Versluys, a lawyer practising

in Leuven, Belgium.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In March 1986 the applicant, being eligible for compulsory

military service pursuant to Section 2 of the Co-ordinated Laws on

Military Service of 30 April 1962 (Gecoördineerde Dienstplichtwetten

van 30 april 1962), informed the Minister of Defence in writing that,

as a Jehovah's witness, he would refuse to perform military service or

substitute civilian service.

On 5 August 1987 the applicant was questioned by the judicial

police (gerechtelijke politie) of Turnhout in respect of his refusal

to fulfil his military obligations. It appears that between 1986 and

the beginning of 1992 the applicant was engaged in proceedings

concerning the question whether he could be regarded as a conscientious

objector within the meaning of the statutory rules on military service,

a status which he refused to accept for being too closely linked with

military service.

By letter of 16 March 1992 the applicant informed the Provincial

Governor of Antwerp that he would not comply with the invitation he had

received to present himself within 15 days after 6 April 1992 at the

Recruitment and Selection Centre for the purposes of fulfilling his

military duties.

The applicant did not present himself at the Recruitment and

Selection Centre within the prescribed time-limit. He was therefore

regarded as a deserter by virtue of Section 107 para. 1 of the Co-

ordinated Laws on Military Service of 30 April 1962. Under Section 107

para. 2, infringements of the first paragraph of that provision are

tried by military courts and are liable to the penalties laid down in

the Military Penal Code.

On 19 August 1992 the applicant, after having reported himself

to the Belgian national police (Rijkswacht), was apprehended. On the

same day, after having heard the applicant, the Judicial Board of

Inquiry of the Court Martial (Rechterlijke Commissie van de Krijgsraad)

of Brussels noted the charge of desertion against him and ordered his

detention on remand.

On 1 September 1992 the applicant requested the Court Martial

(Krijgsraad) of Brussels to order his release.

On 8 September 1992, following adversarial proceedings in which

the applicant was represented by a lawyer and in which he had stated

not to be willing to perform ordinary military service or substitute

civilian service, the Permanent Court Martial (Bestendige Krijgsraad)

of Brussels, consisting of four military and one civilian judge,

rejected the applicant's release request, convicted him of desertion

in peace-time and sentenced him to 24 months' imprisonment.

The applicant's appeal was rejected on 28 October 1992 by the

Courts Martial Appeal Court (Militair Gerechtshof) of Brussels,

consisting of four military and one civilian judge, following

adversarial proceedings. It upheld the judgment of 8 September 1992.

The Courts Martial Appeal Court rejected, inter alia, the applicant's

complaint of a violation of Section 6 of the Constitution (Grondwet),

which provision guarantees equal treatment for everyone. On this point

it held on page five, fifth paragraph, of its judgment:

[translation]

" Considering that the accused can derive no argument

from Section 6 of the Constitution, as the principle of

equality implies, inter alia, that everyone, who concretely

is in a same situation, shall be treated equally; that the

mere fact that compulsory service, either military or

civil, only exists for the male part of the Belgian

citizens does not alter this finding, as this applies

without distinction to this part of the population;"

The applicant's subsequent appeal in cassation was rejected on

19 October 1993 by the Court of Cassation (Hof van Cassatie). The Court

of Cassation rejected the applicant's argument that, since the acts

with which he was charged should be classified as a "political"

offence, he should have been tried by a civilian criminal court (Hof

van Assisen) and not by a military court.

The Court of Cassation further rejected the applicant's argument

that military courts, the majority of whose members are military

officers, do not objectively have the independence and impartiality

required by Article 6 para. 1 of the Convention to try an offence

resulting from a persons's refusal to fulfil military obligations for

moral reasons. On this point it noted that the military officers

exercising judicial powers as members of a military court are not only

exempt from the hierarchical and supervisory authority of political,

administrative and military authorities, but are also bound to remain

independent vis-à-vis the said authorities and the parties to the trial

or any de facto authority since in the oath taken before they take up

their duties, in accordance with Sections 54 and 114 of the Law of

15 June 1899, these officers make a public and solemn undertaking to

abide by the obligations of independence and impartiality. It therefore

found that it cannot be derived from the mere composition of military

courts that they lack the required independence and impartiality within

the meaning of Article 6 para. 1 of the Convention. It further did not

find it established that the military courts were biased in the way

they dealt with the applicant's case.

Insofar as the applicant complained that the principle of

equality of arms had been violated as a consequence of the very large

impact the "krijgsauditeur", the military prosecutor, appears to be

able to have on decisions of military courts, whereas the applicant is

unable to have the same impact, the Court of Cassation held that it had

not appeared that the relevant statutory regulations in respect of

proceedings before the Courts Martial Appeal Court had been violated.

The Court of Cassation, after having noted that the applicant had

failed to substantiate his allegations that the "krijgsauditeur" could

exercise, and in his case in fact had exercised, more influence than

the defence and that the conviction and the sentence imposed had

exclusively been decided by the judges involved, dismissed this

complaint as too vague.

As regards the applicant's complaint that the Courts Martial

Appeal Court had failed to properly answer his complaint on the alleged

violation of his right to equal treatment with women by the practice

to reserve compulsory military service only for the male part of the

population, the Court of Cassation, inter alia, held:

[Dutch]

" Overwegende dat aldus geen schending door een wet, een

decreet of een in artikel 26bis van de Grondwet bedoelde

regel van de artikelen 6 en 6 bis van de Grondwet wordt

opgeworpen, maar een schending van die bepalingen door de

door eiser aangevochten praktijk ;

(...)

Overwegende dat eiser te dezen bij de appelrechters

slechts concludeerde zoals in de stukken 41 en 42 van het

strafdossier is weergegeven ;

Dat de appelrechters door hun overwegingen op de

bladzijde vijf, vijfde overweging, van het bestreden

arrest, eisers aanvoeringen verwerpen, de conclusie

beantwoorden en hun beslissing naar recht verantwoorden ;

Dat de grief niet kan worden aangenomen ;"

[translation]

" Considering that thus no violation by an Act, a Decree

or a rule, referred to in Section 26bis of the

Constitution, of the Sections 6 and 6bis is alleged, but a

violation of those provisions by the practice challenged by

petitioner [of cassation] ;

(...)

Considering that, on this point, before the appeal

judges petitioner only argued as described in the documents

41 and 42 of the criminal case-file ;

That the appeal judges by their reasoning on page

five, fifth consideration, of the challenged judgment

reject the petitioner's submissions, reply to the argument

and base their decision on the law ;

That the complaint cannot be accepted ;"

The Court of Cassation also rejected the applicant's other

complaints which concerned, inter alia, Articles 5 para. 3, 9, and 10

of the Convention.

On 24 February 1994 the applicant was imprisoned at Leuven.

In February 1995 Belgium abolished compulsory military service.

Where it is alleged that a statutory rule is contrary to the

Constitution, an appelant in cassation may request the Court of

Cassation to put a preliminary question to the Court of Arbitration

(Arbitragehof). Pursuant to Section 26 para. 2 and Section 28 of the

Special Act of 6 January 1989 on the Court of Arbitration (Bijzondere

Wet van 6 januari 1989 op het Arbitragehof), the Court of Cassation

cannot refuse an appelant's request to put such a question to the Court

of Arbitration and is bound by the latter court's finding.

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention

that he was not brought to trial within a reasonable time, as he had

informed the Minister of Defence already in 1986 of his refusal to

perform military service and substitute civilian service, but it was

not until 1992 that the Court Martial dealt with his case.

2. The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a hearing by an impartial and independent

tribunal. He submits that, as a civilian conscientious objector, he

should have been brought before a civilian court and not before

military courts, the majority of whose members are military officers,

the more so as military courts in general impose higher sentences than

ordinary courts and as the detention regime for sentenced military

persons is more strict than for sentenced civilians. He also complains

that the position and influence of the office of the "krijgsauditeur",

who performs investigating functions without combining these with

prosecuting functions, violate the principle of equality of arms. The

applicant states he does not wish to complain of the activities of the

"krijgsauditeur" in the pre-trial stage of the proceedings against him,

but of the impact that the military prosecutor's department (het

krijgsauditoriaat) appears to be able to have on the decisions of

military courts, whereas the applicant is not able to have the same

impact.

3. The applicant complains under Articles 9 and 10 of the Convention

that, as a Jehovah's witness, he was not exempted from performing

military service and substitute civilian service. He submits that in

certain other European countries special measures have been taken in

respect of Jehovah's witnesses, such as full exemption from military

service, a symbolic sentence that is not executed or arrangements for

a military service performed in a way which is compatible with the

beliefs of Jehovah's witnesses.

4. The applicant finally complains under Article 14 of the

Convention that he is discriminated against on the basis of his

religion, as for different forms of conscientious objections against

military service certain alternatives have been created, such as

performing military service without having to carry arms and different

kinds of substitute civilian service. However for conscientious

objectors who on moral grounds fully refuse to fulfil their military

obligations ("totaalweigeraars") no specific measure has been taken.

They are sentenced to prison for their convictions. The applicant also

submits that he is discriminated against as a man, as female Jehovah's

witnesses are not punished for their convictions. He finally complains

that for failure to fulfil military obligations military courts impose

higher sentences than civilian criminal courts in cases concerning

conscientious objectors who have failed to perform substitute civilian

service.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that, given the period which elapsed between his initial

letter to the Minister of Defence and the proceedings before the Court

Martial, he was not brought to trial within a reasonable time.

Article 5 (Art. 5) of the Convention, insofar as relevant, reads:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

(...)

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so; (...)

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall (...) be

entitled to trial within a reasonable time or to release pending

trial. Release may be conditioned by guarantees to appear for

trial.

(...)."

The Commission considers that the applicant's initial letter of

March 1986 cannot be taken as the starting point when calculating

whether he was brought to trial within a reasonable time for the

purpose of Article 5 para. 3 (Art. 5-3) of the Convention. The starting

point is the day on which the applicant was arrested, i.e.

19 August 1992. The applicant was brought to trial already on

8 September 1992.

In these circumstances the Commission finds that the applicant

was brought to trial within a reasonable time for the purposes of

Article 5 para. 3 (Art. 5-3) of the Convention.

It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not receive a hearing by an impartial and

independent tribunal. He submits that, as a civilian conscientious

objector, he should have been brought before a civilian court and not

before military courts, the majority of whose members are military

officers, and which generally impose higher sentences than civilian

criminal courts for failure to fulfil military obligations. He also

complains that the position and influence of the office of the

"krijgsauditeur" violate the principle of equality of arms in

proceedings before military courts.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination of (...) any criminal charge against him,

everyone is entitled to a (...) hearing (...) by an independent

and impartial tribunal established by law. (...)."

As regards the question whether the applicant was correctly

brought before a military court as opposed to a civilian criminal

court, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with applications alleging that

errors of law or fact have been committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

(cf. No. 17722/91, Dec. 8.4.91, D.R. 69 p. 345).

As regards the substance of the present complaint, the Commission

recalls that, in order to establish whether a judicial body can be

considered "independent", regard must be had, inter alia, to the manner

of appointment of its members and their term of office, to the

existence of guarantees against outside pressure and to the question

whether the body presents an appearance of independence. As to the

question of impartiality, a distinction must be drawn between a

subjective test, whereby it is sought to establish the personal

conviction of a given judge, and an objective test aimed at

ascertaining whether the judge offered guarantees sufficient to exclude

any legitimate doubt in this respect. In this respect even appearances

may be of a certain importance. The standpoint of the accused in this

respect is important but not decisive. What is determining is whether

this fear can be held to be objectively justified (cf. Eur. Court H.R.,

Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32;

Fey judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 30;

and Holm judgment of 25 November 1993, Series A no. 279-A, p. 14, para.

30).

As to the subjective test, the applicant has not alleged that the

judges involved in the proceedings at issue acted with personal bias.

In any event the personal impartiality of a judge must be presumed

until there is proof to the contrary and in the present case there is

no such proof.

As regards the objective test, the Commission has previously

examined the question whether military courts in Belgium comply with

the requirements of Article 6 para. 1 (Art. 6-1) of the Convention as

regards the independence and impartiality of tribunals (No. 12717/87,

Dec. 8.9.87, D.R. 57 p. 196).

In that case it held that:

"The Commission recalls that although the civilian member

of the court martial is appointed for three months and

although the civilian President of the Military Court

cannot be removed, the four military members of these

courts are appointed for sessions of one month. The

requirement for a judge to be independent does not

necessarily imply that he should be appointed for life or

that he should have security of tenure in law (in other

words, that he cannot be given other duties without his

consent). It is essential, however, that he should not be

subject to any authority in the performance of his duties

as a judge (No. 8209/78, Dec. 1.3.79, D.R. 16 p. 166). The

military members of the military courts cannot be removed

for the duration of their mandate. Even though, as members

of the armed forces, they are subject to the authority of

their hierarchical superiors in their respective units,

when they sit as judges they are not answerable to anyone

about the way in which they administer justice. They are

not subject to any authority in the exercise of their

judicial functions, and these take priority, except in

cases of force majeure, over all other military services

(Article 148 of the Code of Military Criminal Procedure).

Their independence is further guaranteed by the fact that

the part each member plays in the taking of the decision

remains secret, because the decision is taken by the whole

bench and the members are obliged under oath to keep the

deliberations secret.

There is therefore nothing to cast doubt on the fact that

the court martial and the Military Court were, in this

case, independent and impartial tribunals within the

meaning of Article 6 para. 1 (Art. 6-1)."

The Commission finds no reason to take a different view in the

present case as regards the independence and impartiality of the

military courts which dealt with the applicant's case.

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.

3. Insofar as the applicant complains that the position and

influence of the office of the "krijgsauditeur" violate the principle

of equality of arms in proceedings before military courts in view of

the influence this office appears to be able to exercise in decisions

by military courts, the Commission notes that this complaint is

unsubstantiated. The Commission does not find that the facts of the

case disclose any indication justifying the conclusion that in the

proceedings at issue the "krijgsauditeur" was placed in a more

advantageous position than the applicant.

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.

4. The applicant complains under Articles 9 and 10 (Art. 9, 10) of

the Convention that, as a Jehovah's witness, he was not exempted from

performing military service and substitute civilian service.

The Commission recalls that the Convention and its Protocols do

not guarantee, as such, any right to conscientious objection and that

Article 9 (Art. 9) of the Convention, which provision guarantees to

everyone the right to freedom of thought, conscience and religion, does

not give conscientious objectors the right to be exempted from military

or substitute civilian service. It does not prevent a Contracting State

from imposing sanctions on those who refuse such service (cf. No.

7705/76, Dec. 5.7.77. D.R. 9 p. 196; No. 10600/83, Dec. 14.10.85, D.R.

44 p. 155; and No. 17086/90, Dec. 6.12.91, D.R. 72 p. 245).

Insofar as the applicant relies on Article 10 (Art. 10) of the

Convention, which provision guarantees to everyone the right to freedom

of expression, the Commission finds no indication in the present case

that there has been any interference with the applicant's exercise of

this right.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

5. The applicant complains under Article 14 (Art. 14) of the

Convention that he is discriminated against on the basis of his

religion, as for the different forms of conscientious objections

against military service certain alternatives have been created, such

as performing military service without having to carry arms and

different kinds of substitute civilian service. However for

conscientious objectors who fully refuse to fulfil their military

obligations ("totaalweigeraars") no specific measure has been taken.

Article 14 (Art. 14) of the Convention provides 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, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

According to the established case-law, Article 14 (Art. 14) of

the Convention complements the other substantive provisions of the

Convention and the Protocols. It has no independent existence since it

has effect solely in relation to "the enjoyment of the rights and

freedoms" safeguarded by those provisions. Although the application of

Article 14 (Art. 14) does not necessarily 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 (cf. No.

19819/92, Dec. 5.7.94, D.R. 78-A p. 88).

The Commission accepts that the applicant's complaint falls

within the ambit of Article 9 (Art. 9) of the Convention, although the

Convention does not guarantee, as such, a right to conscientious

objection. Article 14 (Art. 14) of the Convention is, therefore,

applicable.

The Convention organs have constantly held that a difference in

treatment between individuals, placed in similar situations, is

discriminatory within the meaning of Article 14 (Art. 14) if it "has

no objective and reasonable justification, that is, if it does not

pursue a "legitimate aim" or if there is not a reasonable relationship

of proportionality between the means employed and the aim sought to be

realised" (cf. Eur. Court H.R., Hoffmann judgment of 23 June 1993,

Series A no. 255-C, pp. 58-59, paras. 31 and 33).

It must first be examined whether the applicant can claim to have

undergone a treatment different from others, placed in a similar

situation.

The Commission notes that the applicant, a so-called "total

objector" refusing to perform both military service and substitute

civilian service on moral grounds, seeks to compare himself with

conscientious objectors who are prepared to fulfil their military

obligations, but who, on moral grounds, either refuse to carry arms or

who refuse to serve in the military forces, as such, but are prepared

to fulfil their military obligations by opting for substitute civilian

service.

The Commission considers that these two situations cannot be

regarded as comparable for the purposes of Article 14 (Art. 14) of the

Convention.

Moreover, the Commission notes that any system of compulsory

military service imposes a heavy burden on the citizens. The burden may

be regarded as acceptable only if it is shared in an equitable manner

and if exemptions from the duty are based on solid grounds. If some

citizens were to be exempted without convincing reasons, a question of

discrimination against the other citizens would arise. These

considerations apply with particular force when exemption from military

service is not accompanied by an obligation to perform substitute

civilian service.

The Convention does not prevent a Contracting State from taking

measures to enforce performance of substitute civilian service, or from

imposing sanctions on those who refuse such service (cf. No. 10600/83,

Dec. 14.10.85, D.R. 44 p. 155). The Commission notes that for

conscientious objectors in Belgium different options were offered in

order to enable them to fulfil their military obligations while

respecting their moral convictions as much as possible, a possibility

of which the applicant chose not to avail himself. The fact that no

exemption for both military service and substitute civilian service can

be obtained in Belgium is, in the Commission's view, not in conflict

with Article 14 (Art. 14) 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.

6. The applicant further claims to be the victim of discrimination

contrary to Article 14 (Art. 14) of the Convention on the ground of

sex, as female Jehovah's witnesses are not punished for their

convictions.

The Commission observes that it does not appear that the

applicant availed himself of the possibility to request the Court of

Cassation to put a preliminary question to the Court of Arbitration on

the compatibility of Section 2 of the Co-ordinated Laws on Military

Service of 30 April 1962, on which provision the compulsory military

service for male Belgian nationals is based, with the constitutional

right to equality. The Commission further observes that, pursuant to

Section 26 para. 2 and Section 28 of the Special Act on the Court of

Arbitration, the Court of Cassation cannot refuse a request to put such

a question to the Court of Arbitration and is bound by the latter

court's finding.

Consequently, a request to the Court of Cassation to put a

question to the Court of Arbitration on the compatibility of the

statutory rule that compulsory military service only exists for male

nationals with the constitutional right to equal treatment must in

principle be regarded as an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention.

It follows that the applicant has not satisfied the condition

laid down in Article 26 (Art. 26) of the Convention and that this part

of the application must be rejected in accordance with Article 27 para.

3 (Art. 27-3) of the Convention.

7. The applicant has also complained under Article 14 (Art. 14) of

the Convention that, for failure to fulfil military obligations,

Belgian military courts impose higher sentences than Belgian civilian

criminal courts in cases concerning conscientious objectors who have

failed to perform substitute civilian service..

The Commission recalls that complaints concerning the length of

sentence passed after due process of law by a judge in possession of

the facts do not generally fall within the scope of the Convention.

However, where a settled policy appears to affect individuals in a

discriminatory fashion issues may arise under Article 5 read in

conjunction with Article 14 (Art. 5+14) of the Convention

(No. 11077/84, Dec. 13.10.86, D.R. 49 p. 170).

In this respect the Commission notes that the applicant has

failed to submit any information indicating that the factual and legal

situation of persons having obtained the status of conscientious

objectors and who are convicted by civilian criminal courts for

subsequently having failed to perform substitute civilian service can

reasonably be regarded as comparable to the factual and legal situation

of persons, who, like himself, have been convicted by a military court

for failure to fulfil military obligations.

This complaint must, therefore, also be rejected as 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HEUDENS v. BELGIUM

HEUDENS v. BELGIUM

LEXI