Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17086/90

by Tomi AUTIO

against Finland

The European Commission of Human Rights sitting in private on

6 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 11 May 1990 by

Tomi AUTIO against Finland and registered on 28 August 1990 under file

No. 17086/90;

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

summarised as follows.

The applicant is a Finnish citizen born in 1969 and resident at

Kaarenkylä. He is a carpenter by profession. Before the Commission

he is represented by Mr. Jouni Salminen, lawyer to the Finnish Union

of Conscientious Objectors.

In 1988 the applicant requested to be exempted from ordinary

military service because of his serious ethical conviction. By letter

of 11 October 1988 the Staff of the Military District of Itä-Uusimaa

(Itä-Uudenmaan sotilaspiirin esikunta, staben för Östra Nylands

militärdistrikt) confirmed his exemption and informed him of the terms

of substitute service (siviilipalvelu, civiltjänstgöring).

In 1989 the Ministry of Labour (työministeriö, arbetsministeriet)

ordered the applicant to start his service on 23 October 1989. After

an initial two-month training period the applicant worked from

19 December 1989 at a hospital as an assistant janitor. The hospital

was situated about 250 kilometres from his home and he was accommodated

in its dormitory.

Until 1 January 1987 the length of substitute service was based

on the 1969 Act on Unarmed Military Service and Substitute Service

(laki 132/69 aseettomasta palveluksesta ja siviilipalveluksesta, lag

132/69 om vapenfri tjänst och civiltjänst, hereinafter "the 1969 Act"),

the length of service being twelve months. Conscientious objectors

applying for substitute service had to undergo an inquiry procedure by

the Examination Board (tutkijalautakunta, prövningsnämnden) concerning

the sincerity of their religious or ethical conviction.

Under the 1950 Military Service Act (laki 452/50 varusmies-

palveluksesta, värnpliktslag 452/50) the length of ordinary military

service is eight months. Conscripts who receive officers' and certain

other kinds of special training perform eleven months of service. By

virtue of an amendment to the Act which entered into force in 1989

conscripts receiving certain special training perform nine and a half

months of service.

Those opposed to armed service may perform unarmed military

service (aseeton palvelu, vapenfri tjänst) of eleven months.

The 1969 Act was based on the principle of proportionality, the

Parliamentary Committee on Defence Matters (puolustusvaliokunta,

försvarsutskottet) having rejected the Government's proposal that the

length of unarmed and substitute service be fourteen months. The

Committee stated inter alia:

"... the [proposed] length of unarmed and substitute

service ..., that is 120 days and 180 days more than the

length of the ordinary service prescribed in the Military

Service Act, is unreasonable. It cannot be considered

appropriate to treat these conscripts in an essentially

more onerous way than the others. ..." (Report No. 5/1968)

On 1 January 1987 the Act on Temporary Amendments to the 1969 Act

(laki 647/85 aseettomasta palveluksesta ja siviilipalveluksesta annetun

lain muuttamisesta, lag 647/85 om temporär ändring av lagen om vapenfri

tjänst och civiltjänst, hereinafter "the 1985 Act") entered into force,

prolonging the length of substitute service to sixteen months and

abolishing the inquiry procedure. A request for exemption from

ordinary military service is now to be made to the Board of

Conscription (kutsuntalautakunta, uppbådsnämnden) and should include

a declaration that the conscientious objection is based on religious

or ethical grounds. Exemption is to be granted upon this request. The

objector may then perform unarmed military service or substitute

service. The 1985 Act will remain in force until the end of 1991.

According to the reasons given by the Government gave when

proposing the 1985 Act to Parliament the substitute service had

previously in some respects had a privileged character. The Government

therefore intended to adjust the practical performance of this service,

making it as burdensome as military service. This aim was to be

achieved by the amendment to Section 26 of the 1969 Act and by

regulations regarding the conditions of substitute service issued by

the Ministry of Justice (oikeusministeriö, justitieministeriet) in

1986. Both measures were taken with the aim of increasing the number

of working hours for conscientious objectors and of making the

performance of substitute service less a matter of individual

treatment.

The prolongation of the substitute service was based on the

consideration that the conscientious conviction was to be "measured".

The Government stated that the inquiry procedure could be abolished,

provided that the sincerity of the conviction could be ascertained by

substantially prolonging the length of substitute service:

"... Provided that substitute service would be 240 days

longer than ordinary military service ... there would be a

reasonable cause to believe that persons applying for

substitute service have a religious or ethical conviction

making it impossible to perform armed service ..."

(pp. 3-4 of the Bill to Parliament)

Simultaneously with the 1985 Act, the Act on the Exemption of

Jehovah's Witnesses from National Service (laki 645/85 Jehovan

todistajien vapauttamisesta asevelvollisuuden suorittamisesta, lag

645/85 om befrielse för Jehovas vittnen från fullgörandet av värnplikt

i vissa fall, hereinafter "the Exemption Act") was enacted. On the

basis of the Exemption Act members of the religious community

"Jehovah's Witnesses" may, on request, be exempted from all forms of

national service.

After the Convention entered into force with regard to Finland

the applicant, invoking the Convention, requested the Ministry of

Labour to shorten the length of his service. By decision of 21 May

1990 this request was rejected.

In February 1991 the applicant's service ended.

COMPLAINTS

The applicant complains inter alia that the length of the

substitute service he had to perform was discriminatory in comparison

with the length of ordinary military service. He contends that the

discrimination related to the enjoyment of his right to freedom of

thought, conscience and religion.

He alleges that the length of substitute service was not based

on an objective and reasonable justification, since it was the

deliberate intention of the Government to make the performance of this

service more burdensome than the performance of military service. He

submits that the fact that the substitute service was prolonged as a

precondition for the exemption of members of "Jehovah's Witnesses" from

all national service, that is to say in a "legislative package", is a

further indication of the unacceptable purposes behind the prolongation

of substitute service.

He further submits that, both conscripts and conscientious

objectors being as poorly paid, the longer duration of the substitute

service supports the argument that it is discriminatory. He finally

submits that under the legislation of other Western European countries

providing for substitute service the length of this service is, with

one exception, as long as or only somewhat longer than military

service. This also goes for Poland and Hungary. Thus, Finland is an

exception by international comparison.

He invokes Article 14 read in conjunction with Article 9 of the

Convention.

THE LAW

The applicant complains that the length of his substitute service

was discriminatory in comparison with the length of ordinary military

service. He alleges that the discrimination related to the enjoyment

of his right to freedom of thought, conscience and religion. He

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

Convention.

Article 9 (Art. 9) of the Convention reads:

"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

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."

Article 14 (Art. 14) of the Convention reads:

"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 has previously found that the right to

conscientious objection is not as such guaranteed by Article 9

(art. 9) of the Convention or any other provision of the Convention or

its Protocols (cf. e.g. No. 7565/76, Dec. 7.3.77, D.R. 9 p. 117; No.

7705/76, Dec. 5.7.77, D.R. 9 p. 196; No. 10640/83, Dec. 9.5.84, D.R.

38 p. 219; No. 10410/83, Dec. 11.10.84, D.R. 40 p. 203; No. 11850/85,

Dec. 2.3.87, D.R. 51 p. 180).

The Commission recalls, however, that Article 9 (art. 9) and the

other provisions of the Convention defining substantive rights are

supplemented by Article 14 (art. 14) prohibiting discrimination in the

enjoyment of such rights. A measure which as such could be in

conformity with one of the normative provisions may nevertheless

violate that provision taken in conjunction with Article 14 (art. 14),

if it is applied in a discriminatory manner. However, there can be no

room for the application of Article 14 (art. 14), unless the facts at

issue fall within the ambit of one of the other substantive provisions

of the Convention (cf. Eur. Court H.R., Inze judgment of 28 October

1987, Series A no. 126, p. 17, para. 36 with further reference).

The Commission finds that, although Finland was not obliged under

Article 9 (art. 9) of the Convention to recognise the applicant as a

conscientious objector, the applicant's complaints nevertheless fall

within the ambit of that provision, and Article 14 (art. 14) of the

Convention is therefore applicable (cf. the above-mentioned No.

10410/83, Dec. 11.10.84, D.R. 40 p. 207).

For the purposes of Article 14 (art. 14) of the Convention, a

difference in treatment is discriminatory if it "has no objective and

reasonable justification", that is, if it does not pursue a "legitimate

aim", or if there is no "reasonable relationship of proportionality

between the means employed and the aim sought to be realised". 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 will

vary according to the circumstances, the subject-matter and its

background (see the above-mentioned Inze judgment, p. 18, para. 41 with

further references).

The Commission considers that, in certain respects, someone who

has opted for substitute service is in a comparable position to someone

who has to do military service. To this extent there was a

differential treatment in the present case (cf. the above-mentioned No.

11850/85, Dec. 2.3.87, D.R. 51 p. 182).

The Commission notes, however, 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 (cf. the

above-mentioned No. 10410/83, Dec. 11.10.84, D.R. 40 p. 203 [207]).

The Commission further notes that the ratio legis of the 1985 Act was

explained, in the relevant Bill to Parliament, as follows:

"As the convictions of conscripts applying for civilian

service will no longer be examined, the existence of these

convictions should be ascertained in a different manner so

as not to let the new procedure encourage conscripts to

seek an exemption from armed service purely for reasons of

personal benefit or convenience. Accordingly, an adequate

prolongation of the term of such service has been deemed

the most appropriate indicator of a conscript's

convictions."

Having regard to these reasons and the other considerations set

out above, the Commission is satisfied that the differential treatment

in question pursued a "legitimate aim".

The question remains whether the differential treatment also

fulfilled the requirement of proportionality, inherent in Article 14

(art. 14). In this regard the Commission accepts, on the one hand, that

genuine conscientious objectors, whose conviction does not allow them

to opt for the shorter military service, may find the duration of their

service unreasonable. On the other hand, the legislation in question

has relieved all those opting for substitute service from the duty to

prove the genuineness of their conviction. Although the duration of

substitute service is considerably longer than that of military service

the Commission, taking into account the State's margin of appreciation,

finds that the differential treatment in question does not amount to

a violation of Article 14 read in conjunction with Article 9

(art. 14+9) 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AUTIO v. FINLAND

AUTIO v. FINLAND