Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20972/92

by Kaj RANINEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 12 November 1992

by Kaj RANINEN against Finland and registered on 19 November 1992 under

file No. 20972/92;

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 1967 and resident in

Helsinki. He is a student and presently executive manager of the Union

of Conscientious Objectors ("Aseistakieltäytyjäliitto"). Before the

Commission he is represented by Ms. Marjaana Laine and Mr. Juha Keltti,

legal secretaries of this union.

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

summarised as follows.

Particular circumstances of the case

In 1986 the applicant was called up for military service. On

account of his studies he obtained a suspension of his duty to report

for service until 20 March 1992. Prior to this date he had objected in

writing to performing any kind of military or substitute civilian

service (siviilipalvelus, civiltjänstgöring).

On 8 April 1992 the applicant was arrested on suspicion of having

evaded military service and was eventually brought to the Pori Brigade

(Porin Prikaati) at Säkylä, where he was supposed to have commenced his

service on 20 March 1992. Having been questioned by military staff on

9 April 1992, he again objected to carrying out any military duties and

his arrest was prolonged.

Following a hearing on 11 April 1992 the District Court

(kihlakunnanoikeus, häradsrätten) of Eura ordered the applicant's

detention on remand in the County Prison of Turku.

Following a hearing on 24 April 1992 the District Court of Eura

convicted the applicant of having evaded service on 20 March 1992 and

of an offence in duty on 9 April 1992. He was sentenced to 45 days'

suspended imprisonment.

Immediately upon his release from prison on 24 April 1992 the

applicant was accompanied by military staff back to the Pori Brigade.

Having been questioned by military staff, he again objected to carrying

out any military duties and was again arrested.

On 28 April 1992 a further request for the applicant's detention

on remand was heard by the District Court of Eura. He was again ordered

to be detained on remand in the County Prison of Turku.

Following a hearing on 12 May 1992 the District Court convicted

the applicant of an offence in service on 24 April 1992 and sentenced

him to 30 days' imprisonment to be served later. Having been released

from prison on the same day, the applicant was again accompanied by

military staff back to the Pori Brigade. Having been questioned by

military staff, he again objected to carrying out any military duties

and was again arrested.

On 15 May 1992 a further request for the applicant's detention

on remand was heard by the District Court of Eura. He was again ordered

to be detained on remand in the County Prison of Turku.

Following a hearing on 29 May 1992 the District Court convicted

the applicant of an offence in service on 12 May 1992 and sentenced him

to 30 days' imprisonment to be served later.

Having been released from prison on 29 May 1992, the applicant

was transported by military police back to the Pori Brigade. Having

been questioned by military staff, he again objected to carrying out

any military duties and was again arrested.

On 2 June 1992 the applicant was transported back to the County

Prison of Turku in order to serve his sentence. On 9 June 1992 he was

released on parole. Immediately upon his release from prison the

applicant was accompanied by military police back to the Pori Brigade.

Having been questioned by military staff, he again objected to carrying

out any military duties and was again arrested.

On 11 June 1992 a further request for the applicant's detention

on remand was heard by the District Court of Eura. He was again ordered

to be detained on remand in the County Prison of Turku.

Following a hearing on 18 June 1992 the District Court convicted

the applicant of offences in service on 29 May and 9 June 1992. He was

sentenced to 40 days' imprisonment to be served later. His release on

parole was also revoked.

Immediately upon his release from prison on 18 June 1992 the

applicant was handcuffed and transported by military police back to the

Pori Brigade. On arrival he was placed in the military hospital, but

was not obliged to carry army clothes. He was not subjected to any

medical examinations. Having been questioned by military staff on

19 June 1992, he again objected to carrying out any military duties.

Thereupon he was formally arrested at 8.05 hrs.

On 22 June 1992 a further request for the applicant's detention

on remand was heard by the District Court of Eura. He was again ordered

to be detained on remand in the County Prison of Turku.

On 26 June 1992 the applicant started serving his aggregated

prison sentence.

Following a hearing on 29 June 1992 the District Court convicted

the applicant of an offence in service on 19 June 1992 and sentenced

him to 35 days' imprisonment. It noted that the applicant had been

deprived of his liberty as from (and including) 19 June 1992. It

further granted him a cost-free trial in accordance with the 1973 Act

on Cost-Free Trial (laki 87/73 maksuttomasta oikeudenkäynnistä, lag om

fri rättegång 87/73; hereinafter "the 1973 Act"). Considering, however,

that the charges were similar to those previously brought against him,

it refused his request that his lawyer be appointed his official

counsel in accordance with the 1983 Act on Military Court Proceedings

(sotilasoikeudenkäyntilaki 326/83, militär rättegångslag 326/83;

hereinafter "the 1983 Act"). The applicant did not appeal against this

decision.

On 20 August 1992 the applicant was released from prison on

parole contrary to his own wish. He was met by military police

officers, who asked whether he was aware of his obligation to perform

his military service. The applicant replied in the affirmative and was

accompanied by military staff to the Pori Brigade. Having been

questioned by military staff, he again objected to carrying out any

military duties and was again arrested.

On 24 August 1992 a further request for the applicant's detention

on remand was heard by the District Court of Eura. He was again ordered

to be detained on remand in the County Prison of Turku.

On 9 September 1992 the District Court convicted the applicant

of an offence in service on 20 August 1992 and sentenced him to 35

days' imprisonment to be served later. The District Court granted him

a cost-free trial, but again refused his request that his lawyer be

appointed his official counsel in accordance with the 1983 Act. The

District Court based its refusal on reasons similar to those advanced

in its judgment of 29 June 1992. The applicant's lawyer nevertheless

assisted the applicant throughout the hearing.

On 11 September 1992 the applicant reported for military service

of his own motion.

On 12 September 1992 a further request for the applicant's

detention on remand was heard by the District Court of Eura. He was

again ordered to be detained on remand in the County Prison of Turku.

Following a hearing on 28 September 1992 the District Court

convicted the applicant of unauthorised leave from 9 to 11 September

1992 as well as of an offence in service on 11 September 1992. He was

sentenced to 36 days' imprisonment to be served later. Two witnesses

were heard on behalf of the prosecution. The applicant was ordered to

pay the costs for hearing these witnesses. He was assisted by a lawyer.

After judgment had been rendered the applicant was transported

back to the County Prison of Turku for immediate release. On release

he was again met by military police officers, but again objected to

being accompanied to the Pori Brigade.

On 2 October 1992 the applicant reported for duty of his own

motion and was again arrested. Having been questioned by military staff

on 3 October 1992, he again refused to comply with any military duties

and his arrest was prolonged.

On 5 October 1992 the applicant was discharged from his military

service for a period of two years.

Following a hearing on 30 November 1992 the District Court

convicted the applicant of an offence in service on 3 October 1992 and

unauthorised leave from 28 September to 2 October 1992. He was

sentenced to 36 days' imprisonment to be served later. His release on

parole was also revoked. Both the applicant and the prosecution

appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki.

On 7 December 1992 the Commander in Chief of the Military

District (sotilaspiiri, militärdistriktet) of Helsinki considered the

applicant to be temporarily unfit for service pending a further

examination in December 1993. The decision was based on rule V629A of

an Instruction for Medical Examinations (Fi. "lääkärintarkastusohje-

sääntö"). According to the applicant, this rule prescribes that a

conscript with an "an undefined psychosocial problem" (Fi. "määrittele-

mätön psykososiaalinen ongelma") may be considered unfit for service.

On 18 October 1992 the applicant requested the Supreme Court

(korkein oikeus, högsta domstolen) to restore the time-limit for

appealing against the District Court's judgment of 28 September 1992.

He stated, inter alia, not having received any written notice of

appeal.

On 18 December 1992 the Supreme Court rejected the applicant's

request, noting, inter alia, that he had been assisted by a lawyer at

the District Court's hearing, where its judgment had been rendered.

Thus, the giving of a written notice of appeal had been clearly

unnecessary.

On 16 March 1993 the Court of Appeal upheld the District Court's

judgment of 9 September 1992 in so far as entailing the applicant's

conviction. The Court of Appeal considered, however, that the applicant

had been in need of an official counsel and therefore retrospectively

appointed his lawyer as his official counsel as from 8 September 1992.

On 16 March 1993 the Court of Appeal furthermore upheld the

District Court's judgment of 30 November 1992. In this respect the

applicant was subsequently refused leave to appeal to the Supreme

Court.

Relevant domestic law

1. Refusal to perform armed military service

According to the 1950 Military Service Act (asevelvollisuuslaki

452/50, värnpliktslag 452/50; hereinafter "the 1950 Act"), a conscript

who has a serious conscientious objection against performing armed

military service and who does not wish to opt for substitute service

shall be exempted from armed military service in peacetime and be

ordered to perform unarmed military service (section 36a, as amended

by Act no. 1728/91). The duration of such service is 330 days.

2. Refusal to perform substitute civilian service

According to the 1991 Act on Substitute Civilian Service

(siviilipalveluslaki 1723/91, civiltjänstlag 1723/91), a conscript who

declares a serious conscientious objection to performing any kind of

military service shall be exempted from such service in peacetime and

instead perform substitute service (section 1). The duration of this

service is 395 days (section 3). A conscientious objector who refuses

to perform his substitute service after later having been called up to

this end shall be convicted and sentenced to a 197-day prison term

intended to correspond to half the duration of the substitute service.

The obligation to perform substitute service ceases when this prison

term has been served. A conscript refusing to perform substitute

service after having opted for such service can only be convicted once

of this offence (section 26, subsections 1 and 2). The prison sentence

shall be unconditional and the convict shall serve his whole sentence,

unless he later wishes, and is able to, perform substitute service, in

which case he shall be released on parole for his remaining period of

service (section 28, subsection 1 and section 29, subsections 1 and 2).

3. Refusal to perform either military or substitute service

In accordance with the 1889 Penal Code (rikoslaki 39/1889,

strafflag 39/1889) a refusal to perform either military or substitute

service may be considered as an offence in service punishable with up

to one year's imprisonment (Chapter 45, sections 4 and 15, as amended

by Act no. 792/89). Alternatively, the refusal may be considered as

evasion from service or as unauthorised leave. A punishment imposed for

such a refusal does not affect the convict's liability to perform

either military or substitute service up to the end of the year of his

thirtieth birthday, unless he is exempted from service (section 23,

subsection 2 (3) and section 15 of the 1950 Act).

4. Fetching of a conscript failing to report for military service

According to the 1951 Decree on the Application of the Military

Act (asetus 63/51 asevelvollisuuslain soveltamisesta, förordning 63/51

ang. tillämpning av värnpliktslagen; hereinafter "the 1951 Decree"),

a conscript who has failed to report for military service on a fixed

day in the absence of a legal obstacle shall as soon as possible be

brought by the police to his place of service (section 36, as amended

by Decree no. 1361/88).

5. Classification of a conscript's fitness to perform military

service

According to the 1950 Act, a decision concerning a conscript's

fitness to perform military service shall always be based on an

"examination" (section 15, as amended by Act no. 1169/88). At least one

of the examiners shall be a military physician (section 66 of the 1951

Decree). The classification decision is not appealable (section 37,

subsection 3 of the 1950 Act).

6. Cost-free trial

According to the 1973 Act, among others an accused may be granted

a cost-free trial, if he or she cannot without difficulties meet all

costs incurred in the criminal proceedings (section 1, subsection 1).

If the accused cannot without difficulties assert his or her rights and

interests, an official counsel shall also be appointed (section 10,

subsection 1, as amended by Act no. 1125/88). An official counsel, who

is not a public legal adviser, shall be reasonably compensated by the

State for his or her work in the case, for loss of time as well as for

necessary costs incurred (section 15, subsection 1).

7. Right to official counsel

According to the 1983 Act, as applicable in conjunction with the

1973 Act, an accused who is not already assisted or represented by

counsel in military court proceedings shall have the right to have an

official counsel appointed in order to assist him, provided that he

would otherwise be unable properly to assert his rights. Decisions and

judgments rendered in the course of military court proceedings are free

of charge (section 28, subsection 1, as amended by Act no. 1126/88).

An appeal lies against a refusal to appoint an official counsel

(sections 18-19).

8. The convict's responsibility for costs incurred for the

presentation of certain evidence

According to the 1972 Act on State Responsibility for Costs

Incurred for the Presentation of Certain Evidence (laki 666/72 valtion

varoista maksettavista todistelukustannuksista, lag 666/72 om

bestridande av bevisningskostnader med statens medel), a convict shall

be ordered to compensate the State for costs incurred in his case,

unless they can be considered to have been unnecessary. If the

imposition of such an obligation on the convict would, for a reason

specified in the 1972 Act, be unreasonable, he shall be exempted from

it or his compensation liability shall be reduced (section 16). An

appeal against such an obligation lies with the Court of Appeal and,

with leave to appeal, with the Supreme Court (section 10 of the 1972

Act and Chapter 17, section 42 of the Code of Judicial Procedure

(Oikeudenkäymiskaari, Rättegångs Balk)).

COMPLAINTS

1. The applicant complains that his repeated convictions in

conjunction with his treatment during the ensuing criminal proceedings

constituted degrading treatment. During his arrests he was allegedly

isolated. On 18 June 1992 he was transported in handcuffs to the

military hospital. His fitness classification was changed in spite of

the absence of medical evidence warranting this. He was obliged to

appear fourteen times before the District Court on account of his one

and only ongoing objection to performing any kind of military or

substitute service. He was subjected to repeated detentions on remand

as well as to numerous interrogations. He invokes Article 3 of the

Convention.

2. The applicant further complains that the deprivation of his

liberty from 18 June 1992, following his release from prison, until the

issuing of the arrest order on 19 June 1992 was in violation of Article

5 para. 1 of the Convention. The handcuffing of the applicant allegedly

shows that he was not brought to the military hospital of his own free

will.

3. The applicant also alleges that he was not informed either orally

or in writing of the reasons for his alleged arrest on 18 June 1992,

also including his placement in the military hospital. He invokes

Article 5 para. 2 of the Convention.

4. The applicant furthermore complains under Article 6 para. 1 of

the Convention that he was denied a fair hearing in two respects.

Firstly, the applicant was denied the right to be assisted by

official counsel in accordance with the 1973 and 1983 Acts at the

District Court's hearings on 29 June and 9 September 1992. In this

respect he also invokes Article 6 para. 3 of the Convention.

Secondly, the applicant was ordered to compensate the expenses

incurred by the two witnesses heard by the District Court on

28 September 1992 at the prosecution's request. Allegedly, this

"additional punishment" was imposed as a result of his refusal to

express himself at that hearing. In this respect he also invokes

Article 6 para. 2 of the Convention.

5. The applicant furthermore complains that he has been convicted

repeatedly of the same offence, this being in violation of Article 4

of Protocol No. 7.

6. The applicant finally complains under Article 14 of the

Convention that he has been discriminated against in two respects for

having consistently refused to perform either military or substitute

service.

Firstly, the prison sentences served by him on account of his

consistent conscientious objection to military or substitute service

could not, and cannot, be deducted from his remaining term of military

service. However, the prison term to be served by a conscientious

objector refusing to perform any kind of service once he has opted for

substitute service is deductible from his remaining term of service,

should he not pursue his refusal.

Secondly, the aggregated prison term which the applicant has been

sentenced to serve already exceeds the prison term which could be

imposed on a conscientious objector refusing to perform any service

once he has opted for substitute service.

THE LAW

1. The applicant complains that he has been subjected to degrading

treatment on account of his ongoing objection to performing any kind

of military or substitute service. He refers to the repeated criminal

proceedings instituted against him concluding in equally repeated

criminal convictions. He also refers to his repeated detentions on

remand, his alleged isolation while arrested, his transportation to the

military hospital in handcuffs and the change of his fitness

classification. He invokes Article 3 (Art. 3) of the Convention which

reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

a) The alleged isolation of the applicant during his arrests

As regards the alleged isolation of the applicant while he was

arrested, the Commission recalls that the segregation of a detainee

does not in itself constitute inhuman or degrading treatment. Whilst

prolonged removal of a person from association with others is

undesirable, the question whether such a measure is contrary to Article

3 (Art. 3) of the Convention depends on the particular conditions of

its application, including its stringency, duration and purpose, as

well as its effects on the person concerned. For instance, the removal

of a prisoner from association with fellow inmates for security,

disciplinary or protective reasons does not normally amount to inhuman

treatment or punishment (cf. e.g. Bouajila v. Switzerland, Comm. Report

1.7.93, paras. 102-104, to be published; Dhoest v. Belgium, Comm.

Report 14.5.87, paras. 116-118, D.R. 55 pp. 5-50, at pp. 20-21, with

further references, and No. 14610/89, Dec. 9.7.91, D.R. 71 pp. 168-221,

at pp. 190-191, with further references).

In the present case the applicant has not substantiated the

length of the alleged periods of isolation and his conditions during

those periods. In these circumstances the Commission, assuming that the

applicant has complied with the six months' rule in Article 26

(Art. 26) of the Convention, cannot find any appearance of a violation

of Article 3 (Art. 3) in this respect.

It follows that this aspect of the complaint must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b) The handcuffing of the applicant

The Commission considers that the handcuffing of the applicant

on 18 June 1992 for the purpose of transporting him to the military

hospital raises issues under Articles 3 and 8 (Art. 3, 8) of the

Convention. Article 8 (Art. 8) reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission considers, however, that it cannot, on the basis

of the file, determine the admissibility of this aspect of the

complaint. It is therefore necessary to give notice thereof to the

respondent Government in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure.

c) The fitness classification of the applicant on 7 December

1992

The Commission considers that also the classification of the

applicant as temporarily unfit for service on account of his "undefined

psychosocial problem" raises issues under the above-cited Articles 3

and 8 (Art. 3, 8) of the Convention. It cannot, however, determine the

admissibility of this aspect of the complaint on the basis of the file.

It is therefore necessary to give notice thereof to the respondent

Government.

d) The remainder of the complaint

The Commission finds no indication that the criminal proceedings

instituted against the applicant as well as his ensuing convictions and

repeated placement in detention on remand reached the threshold of

severity of treatment contrary to Article 3 (Art. 3). There is thus no

appearance of a violation of that provision.

It follows that this aspect of the complaint must also be

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

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

2. The applicant further complains that the deprivation of his

liberty from 18 June 1992, following his release from prison, until the

issuing of the arrest order on 19 June 1992 was in violation of Article

5 para. 1 (Art. 5-1) of the Convention. This provision reads as

follows:

"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:

a. the lawful detention of a person after conviction by

a competent court;

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order

to secure the fulfilment of any obligation 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;

d. the detention of a minor by lawful order for the

purpose of educational supervision or his lawful detention

for the purpose of bringing him before the competent legal

authority;

e. the lawful detention of persons for the prevention of

the spreading of infectious diseases, of persons of unsound

mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent

his effecting an unauthorised entry into the country or of

a person against whom action is being taken with a view to

deportation or extradition.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint. It is therefore

necessary to give notice thereof to the respondent Government.

3. The applicant also alleges that he was not informed either orally

or in writing of the reasons for his alleged arrest on 18 June 1992,

also including his placement in the military hospital. He invokes

Article 5 para. 2 (Art. 5-2) of the Convention which reads as follows:

"Everyone who is arrested shall be informed promptly, ...,

of the reasons for his arrest and of any charge against

him.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint. It is therefore

necessary to give notice thereof to the respondent Government.

4. The applicant furthermore complains under Article 6 para. 1

(Art. 6-1) of the Convention that he was denied a fair hearing in two

respects. Firstly, the District Court refused to appoint an official

counsel for him at its hearings on 29 June and 9 September 1992. In

this respect he also invokes Article 6 para. 3 (Art. 6-3) of the

Convention. Secondly, he was ordered to compensate the expenses

incurred by the two witnesses heard by the District Court on 28

September 1992 at the prosecution's request. In this respect he also

invokes Article 6 para. 2 (Art. 6-2) of the Convention.

The relevant parts of Article 6 (Art. 6) of the Convention read

as follows:

"1. In the determination ... of any criminal charge

against him, everyone is entitled to a fair and public

hearing ... by [a] tribunal established by law. ...

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:

...

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; ..."

a) The District Court's refusal to appoint an official

counsel at its hearing on 29 June 1992

The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with an application after all domestic

remedies have been exhausted, according to generally recognised rules

of international law. The complaints brought before the Commission

should normally have been raised before the competent domestic courts

in compliance with the formal requirements and time-limits laid down

in domestic law (Eur. Court H.R., Cardot judgment of 19 March 1991,

Series A no. 200, p. 18, para. 34).

The Commission observes that the applicant lodged no appeal

against the District Court's refusal to appoint an official counsel for

him at its hearing on 29 June 1992. An examination of the complaints

does not disclose the existence of any special circumstances which

might have absolved him from his obligation to exhaust the domestic

remedies available to him.

It follows that this aspect of the complaint must be rejected for

non-exhaustion of domestic remedies within the meaning of Article 27

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

b) The District Court's refusal to appoint an official counsel

at its hearing on 9 September 1992

The Commission recalls that under Article 25 (Art. 25) of the

Convention it may receive petitions from any person, non-governmental

organisation or group of individuals claiming to be the "victim" of a

violation by one of the High Contracting Parties of the rights set

forth in this Convention. It observes that the applicant lodged a

successful appeal against the District Court's refusal to appoint an

official counsel for the applicant at its hearing on 9 September 1992.

In these circumstances it finds that the applicant can no longer claim

status as a "victim" within the meaning of Article 25 (Art. 25) of the

Convention in regard to this aspect of the complaint.

It follows that this aspect of the complaint must be rejected as

being incompatible ratione personae with the provisions of the

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

c) The District Court's order of 28 September 1992 obliging the

applicant to pay the prosecution's costs for obtaining

witness evidence

Recalling the above-mentioned requirement that domestic remedies

be exhausted, the Commission observes that the applicant lodged no

appeal against the District Court's order of 28 September 1992 obliging

him to pay the prosecution's costs for hearing witnesses. An

examination of the complaints does not disclose the existence of any

special circumstances which might have absolved him from his obligation

to exhaust the domestic remedies available to him.

It follows that this aspect of the complaint must also be

rejected for non-exhaustion of domestic remedies within the meaning of

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

5. The applicant furthermore complains that he has been convicted

repeatedly of the same offence, this being in violation of Article 4

of Protocol No. 7 (P7-4). Article 4 para. 1 (Art. 4-1) reads as

follows:

"No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State. ..."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint. It is therefore

necessary to give notice thereof to the respondent Government.

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

Convention that he has been discriminated against in two respects for

having consistently refused to perform either military or substitute

service. Firstly, the prison sentence served by him on account of his

conscientious objections to military or substitute service could not,

and cannot, be deducted from his remaining term of military service.

However, the prison term to be served by a conscientious objector

refusing to perform any kind of service once he has opted for

substitute service is deductible from his remaining term of service,

should he not pursue his refusal. Secondly, the aggregated prison term

which the applicant has been sentenced to serve already exceeds the

prison term which could be imposed on a conscientious objector refusing

to perform any service once he has opted for substitute service.

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 sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission considers that this complaint raises issues under

Article 14 in conjunction with Article 9 (Art. 14+9) of the Convention

and/or the above-cited Article 4 of Protocol No. 7 (P7-4). Article 9

(Art. 9) of the Convention reads as follows:

"1. Everyone has the right to freedom of thought,

conscience and religion; this right includes freedom to

change his religion or belief and freedom, either alone or

in community with others and in public or in private, to

manifest his religion or belief, in worship, teaching,

practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law

and are necessary in a democratic society in the interests

of public safety, for the protection of public order,

health or morals, or for the protection of the rights and

freedoms of others."

The Commission considers, however, that it cannot determine the

admissibility of this complaint on the basis of the file. It is

therefore necessary to give notice thereof to the respondent

Government.

For these reasons, the Commission,

by a majority,

DECIDES TO ADJOURN the examination of

the complaint relating to the applicant's handcuffing on 18 June

1992;

the complaint relating to the grounds for classifying the

applicant as temporarily unfit for service;

the complaint relating to the lawfulness of the alleged arrest

of the applicant from 18 to 19 June 1992;

the complaint relating to the alleged absence of reasons for the

above alleged arrest;

the complaint relating to the applicant's allegedly repeated

convictions of the same offence; and

the complaint relating to the alleged discriminatory treatment

of the applicant in his capacity as a so-called "total objector"

in comparison with conscientious objectors having refused to

perform substitute service after having opted for such service;

and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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RANINEN v. FINLAND

RANINEN v. FINLAND

LEXI