PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

     I agree that there has been a violation of Article 14 in

conjunction with Article 9 of the Convention, but unlike the majority

consider that it is necessary to examine the case under Article 9 taken

by itself.

     A separate issue arises because if the applicants had undertaken

military service they would have been acting contrary to a fundamental

tenet of their religion. The alternative for them was to refuse to

enlist and risk prosecution and detention, thus depriving them of the

opportunity to manifest their religion in community with others and in

public, in worship, teaching, practice and observance. In their dilemma

they opted for the latter course and were, in the event, subjected to

lengthy periods of detention. It may be assumed that this course of

action represented, to them, a lesser evil than performing military

service.

     I consider that, by analogy with the Young, James and Webster

Case (Series A, Vol. 44) such a form of compulsion, in the

circumstances of the case, strikes at the very substance of the freedom

guaranteed. The freedom in this case is the freedom to manifest the

well-known religious conviction of Jehovah's Witnesses by refraining

from personal military service. The situation can be distinguished from

one in which the actions of individuals do not actually express the

belief concerned (Arrowsmith v. United Kingdom, Comm. Report 12.10.78,

D.R. 19 p. 5) and from a situation concerning an obligation which has

no specific conscientious implications in itself, such  as a general

tax obligation (Application No. 10358/83, D.R. 37 p. 142). There has

accordingly been an interference with the right guaranteed by

Article 9 para. 1.

     Given the particular status of the applicants as ministers of a

known religion, and the Commission's finding of unlawfulness under

Article 5 para. 1, it cannot be said that the interference was

"prescribed by law" for the purpose of Article 9 para. 2. This makes

it unnecessary to consider whether it was "necessary in a democratic

society" for one of the aims mentioned in that provision.

     This conclusion is not affected by the fact that Article 4

para. 3 (b) of the Convention specifies that "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" is not included in the concept of forced or compulsory labour.

It is true that in the Grandrath Case (Comm. Report, 12.12.66) the

Commission concluded that this express reference meant that objections

of conscience do not, under the Convention, entitle a person to

exemption from such service. However, as pointed out by

Mr. Eusthadiades in his concurring opinion, this does not mean that

Article 9 is inapplicable, but rather that the necessity for compulsory

military or alternative service falls to be considered under

paragraph 2 of Article 9, and that the margin of appreciation is

extended as a result of Article 4 para. 3 (b).

     The approach of Mr. Eusthadiades is in my view more consistent

with the structure of the Convention. First, the savers in Article 4

are for the purposes of the right specifically guaranteed by Article 4.

Second, the Convention does not purport to recognise that States may

arbitrarily impose compulsory military service or alternative service.

The Court has found a violation of Article 14 in conjunction with

Article 4 para. 3 (d) where a financial burden ensuing from provision

for compulsory service in the fire-brigade involved a difference of

treatment on the ground of sex (Schmidt v. Germany, Judgment of

18 July 1994, Series A, Vol. 291). Third, the Commission in the above-

mentioned case had been of the opinion that there had also been a

violation of Article 14 in conjunction with Article 1 of

Protocol No. 1. In the event, the Court did not find it necessary to

examine the complaint. This represents a significant evolution of the

law since the Grandrath Case: neither the Commission nor the Court

adopted the view that the saver in Article 4 para. 3 (b) had the effect

of rendering Article 1 of Protocol No. 1 inapplicable. Fourth, the

formulation of Article 4 para. 3 (b) ("any" service of a military

character, "in case of conscientious objectors in countries where they

are recognised") makes it clear that the framers of the Convention did

not assume that every country had a need for compulsory military

service, but allowed (without prejudging any issue under other

provisions of the Convention) for the fact that not every country gave

recognition to conscientious objectors. Finally, Article 9 contains no

express saver for compulsory military or alternative service in its

first paragraph, notwithstanding the recognition in Article 4

para. 3 (b) that questions of conscience could arise concerning

military service, and notwithstanding the deliberate insertion of a

third "saving" sentence in the first paragraph of Article 10.

     For these reasons, I voted for a finding of a violation of

Article 9 taken by itself.

                                                 (Or. English)