DISSENTING OPINION OF JUDGE VAJIĆ

1. I do not agree with the majority that there has been a violation of the applican t ’ s right under the Convention i n the present case . In my opinion the case should be distinguished from the cases L ö ffelmann v. Austria (no.42967/98) and G ü tl v. Austria (no. 49686/99), both adopted today, and it should be struck out of the list of cases under Article 37 § 1 (b) of the Convention .

2. The applicant assumed the function of a preacher and an elder in the community of Jehovah ’ s Witnesses. He was called up to perform military service, as the authorities found that exemption from the obligation to perform military service applied only to members of recognized religious societies and not to members of registered religious communities such as the Jehovah ’ s Witnesses. So far, the applicant was in the same situation as the applicants in the L ö ffelmann and G ü tl cases, in which the Court unanimously found a violation of Article 14 in conjunction with Article 9 of the Convention. However, and contrary to the applicants in these two cases, on 26 August 2003 Mr Lang requested the Federal Ministry for Defence to take no action until the European Court of Human Rights had decided on his application. The applicant was informed that an instruction had been issued to the relevant Military Authority not to call him up until further notice. Thus, he has never been required to perform any kind of military service (see paragraph 12 of the judgment).

3. In the meantime the European Court of Human Rights adopted a judgment in the case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40 825/98, 31 July 2008 ), in which it found a breach of Article 14 of the Convention taken in conjunction with Article 9 because of the impossibility for the Jehovah ’ s Witnesses in Austria to obtain the (privileged) status of a religious society and register as such (see paragraph 30 of the judgment). Since this status question is the key element in the cases concerning the performance of military service by applicants who assumed religious functions within the Jehovah ’ s Witnesses, comparable to functions within recognized religious societies, the Court followed the approach adopted in the above-mentioned case to find further breaches of the same Articles, on the basis of the same reasoning, in the above-mentioned cases of G ü tl v. Austria and L ö ffelmann v. Austria , where the applicants were obliged to perform their (civilian) military service.

4. In cases in which a matter has been resolved at the domestic level, it is the Court ’ s established case-law to accept that there is no need to continue the examination of such applications (for instance, where an applicant obtains permission to remain in a country instead of being expulsed, cf. Barakat Saleh v. t he Netherlands , no. 15243/04, 3 June 2008; Yuusuf Nuur v. t he Netherlands , no. 1734/04, 31 January 2008; and Sisojeva v. Latvia , [ GC ], 60654/00, 5 January 2001, §§ 102-104). In my opinion, the same approach should be applied in cases where a matter has been resolved by the European Court of Human Rights, as in the present case. It is clear that the Austrian authorities, which since 2003 have stayed the order for the applicant to perform his military service, will not call him up following the Court ’ s adoption of judgments in the cases of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria , G ü tl v. Austria and L ö ffelmann v. Austri a , in which it has decided both the question of principle underlying the problem at issue and also the issue relating to the performance of military service for persons assuming religious functions, such as obtained in the present case.

5. Consequently, and in the light of all the relevant circumstances of the case, I consider that the fact that the applicant ’ s conscription was postponed in 2003 pending the outcome of the Strasbourg proceedings (see paragraph 12 of the judgment) and the fact that the Court has in the meantime adopted the above-mentioned judgments, in which it found a breach of Convention rights in analogous cases, are adequate and sufficient to remedy the applicant ’ s complaint. The matter giving rise to his complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). No particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine .

6. Thus, in my opinion the application should be struck ou t of the Court ’ s list of cases.