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FIRST
SECTION
CASE OF KOPPI v. AUSTRIA
(Application
no. 33001/03)
JUDGMENT
STRASBOURG
10
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Koppi v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 19 November 2009,
Delivers
the following judgment, which was adopted on that date.
PROCEDURE
- The
case originated in an application (no. 33001/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Matthias Stefan Koppi
(“the applicant”), on 29 September 2003.
- The
applicant was represented by Mr R. Kohlhofer., a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Mr F. Trauttmansdorff, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
- The
applicant alleged that he had been discriminated against in the
exercise of his rights under Articles 4 and 9 of the Convention on
account of his religion as he was liable for military or alternative
civilian service, whereas members of recognised religious societies
holding religious functions comparable to his own were exempted.
- By
a decision of 5 January 2006 the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Rankweil.
7. The
applicant is a member of the “Bund Evangelikaler Gemeinden in
Österreich”, which became a registered religious community
(eingetragene Bekenntnisgemeinschaft)
under the Registered Religious Communities Act 1998 (Bundesgesetz
über die Rechtspersönlichkeit von religiösen
Bekenntnisgemeinschaften) on 11 July
1998.
- From
2000 to 2001 the applicant attended the one-year course of the St
Chrischona theological seminary (Bibelschule) in Switzerland.
Since then he has been giving religious instruction to the youth and
has been working as a municipal preacher (Prediger).
- On
27 September 2000 the applicant filed a request with the Federal
Minister for Internal Affairs (Bundesminister für Inneres)
for recognition as a conscientious objector (Zivildiensterklärung).
- On
16 November 2000 the Minister for Internal Affairs recognised the
applicant as a conscientious objector. Accordingly, he was exempted
from the duty to perform military service but liable to perform
civilian service (Zivildienst).
- On
20 December 2000 the applicant requested the Minister of Internal
Affairs to apply section 13a § 1 of the Civilian Service Act in
conformity with the Constitution and to exempt him from the
obligation to perform civilian service. He submitted that this
provision exempted members of recognised religious societies who
performed specific services relating to worship or religious
instruction from the obligation to perform civilian service, whereas
he, as a student of the theological seminary St. Chrischona, had
a comparable clerical position within a registered religious
community, namely the “Bund Evangelikaler Gemeinden in
Österreich”. Consequently, he should be also exempted from
civilian service.
- On
18 January 2002 the Minister of Internal Affairs dismissed the
applicant's request. The decision referred to the findings of the
Constitutional Court (Verfassungsgerichtshof) in a decision of
11 November 1998, in which it had held that exemption from
the obligation to perform civilian service under section 13a of the
Civilian Service Act merely applied to members of recognised
religious societies and could not be extended to members of
registered religious communities.
- On
13 March 2002 the applicant filed a complaint with the Constitutional
Court.
- On
7 October 2002 the Constitutional Court declined to deal with the
complaint for lack of prospects of success.
- On
the applicant's request the Constitutional Court transmitted his
complaint to the Administrative Court (Verwaltungsgerichtshof).
- On
18 February 2003 the applicant supplemented his complaint.
On 18
March 2003 the Administrative Court, referring to the above-mentioned
decision of 11 November 1998 by the Constitutional Court, dismissed
the complaint. This decision was served on the applicant's counsel on
9 April 2003.
II. RELEVANT DOMESTIC LAW
A. The Civilian Service Act
- Section
13a § 1 of the Civilian Service Act (Zivildienstgesetz)
provides as follows:
“An exemption from the obligation to perform
civilian service shall apply to the following members of recognised
religious societies:
1. ordained priests,
2. persons involved in spiritual welfare or
in clerical teaching after graduating in theological studies,
3. members of a religious order who have made
a solemn vow, and
4. students of theology who are preparing to
assume a clerical function.”
B. Religious societies and religious communities
- For
a detailed description of the legal situation in Austria in this
field see Löffelmann v. Austria,
no. 42967/98, §§ 23-39, 12 March 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
TOGETHER WITH ARTICLE 9
- The
applicant complained that the fact that he was not exempt from
military service or alternative civilian service, while assuming a
function within the Federation of Evangelical Communities in Austria
(Bund Evangelikaler Gemeinden in Österreich) which was
comparable to those of members of recognised religious societies who
were exempt from such service, constituted discrimination on the
ground of his religion, as prohibited by Article 14 of the Convention
taken together with Article 9.
- Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
Article
9 provides 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 private, to manifest his
religion or belief, in worship, teaching, practice and observance.
- 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
Government pointed out that the obligation to perform civilian
service was a substitute service for conscientious objectors who
refused military service. Section 13a § 1 of the Civilian
Service Act stipulated exemptions from this obligation which were
linked to membership of a recognised religious society. However,
there were also further criteria with which the applicant did not
comply either. The applicant had stated that his function would be
comparable to that of persons involved in spiritual welfare or in
clerical teaching after graduating in theology or who were preparing
for such functions. In this connection, the Government stressed that
the applicant had not stated during the domestic proceedings that he
would study theology at a university or any equivalent institution.
Furthermore, the applicant's submissions that he would perform divine
service and engage in preaching activity had not been substantiated
and were, in any event, irrelevant, as he had started doing that work
long after the impugned decisions in the present case were issued. In
his application the applicant had stated that he was still a
“student”. Therefore, notwithstanding his religious
denomination, the applicant had failed to prove that he complied with
the criteria of the above provision. Thus, there was no need to
consider whether or not the applicant had been discriminated against
on account of his confession. Furthermore, members of recognised
religious societies who did not comply with the criteria laid down in
section 13a § 1 of the Civilian Service Act were not exempt
from civilian service.
- The
Government further submitted that, as the Contracting States were
under no obligation to accept a refusal to perform military service
for religious reasons, non-exemption of a person from military or
alternative civilian service did not raise any concerns under Article
9 of the Convention. In any event, the applicant's submissions did
not indicate that the obligation to perform military or alternative
civilian service entailed any concrete interference with his rights
under Article 9.
- The
applicant contested these arguments and maintained that if the
relevant domestic legislation provided for exemptions from military
or alternative civilian service, it should do so without any
discrimination.
- He
further maintained that he held a function comparable with that of
members of a recognised religious society. While it was true that the
Bund Evangelikaler Gemeinden in Österreich had neither chairs
nor faculties within state or church universities, it offered
nonetheless intensive clerical training which consisted of
theoretical studies and practical exercises. The applicant pointed
out that the Biblical seminary he visited had prepared him to
exercise pastoral care (Seelsorge) and to do preaching and had
to be considered as comprehensive training for a clerical function.
The applicant had been giving religious instruction to adolescents
aged between 11 and 14 years in his municipality, had worked as a
preacher and had performed divine service since February 2002 at the
latest. In any event, the above provisions did not require the
exercise of a clerical function but were complied with when the
person concerned was preparing for such function. The Austrian
authorities and courts had only linked the granting of an exemption
from civilian service to membership of a recognised religious society
and had not examined whether or not the person concerned performed
comparable functions for the purposes of section 24(3) of the
Military Service Act.
- As
the Court has consistently held, Article 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 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there
can be no room for its application unless the facts at issue fall
within the ambit of one or more of the latter (see, among many other
authorities, Van Raalte v. the Netherlands, 21
February 1997, § 33, Reports of Judgments and Decisions
1997-I, and Camp and Bourimi v. the Netherlands, no. 28369/95,
§ 34, ECHR 2000-X).
- Furthermore, the freedom of religion as guaranteed by
Article 9 entails, inter alia, freedom to hold religious
beliefs and to practise a religion. While religious freedom is
primarily a matter of individual conscience, it also implies, inter
alia, freedom to manifest
one's religion, alone and in private, or in community with others, in
public and within the circle of those whose faith one shares. Article
9 lists the various
forms which manifestation of one's religion or belief may take,
namely worship, teaching, practice and observance (see, as a
recent authority, Leyla Şahin v. Turkey [GC],
no. 44774/98, §§ 104-105, ECHR 2005-XI, with further
references).
- In the Court's view, the privilege at issue –
namely the exemption from the obligation to perform military service
and also alternative civilian service, afforded to religious
societies in respect of those who are part of their clergy –
shows the significance which the legislature attaches to the specific
function these representatives of religious groups fulfil within such
groups in their collective dimension. Observing that religious
communities traditionally exist in the form of organised structures,
the Court has repeatedly found that the autonomous existence of
religious communities is indispensable for pluralism in a democratic
society and is thus an issue at the very heart of the protection
which Article 9 affords (see Hasan and Chaush v. Bulgaria [GC],
no. 30985/96, § 62, ECHR 2000 XI).
- As
the privilege at issue is intended to ensure the proper functioning
of religious groups in their collective dimension, and thus promotes
a goal protected by Article 9 of the Convention, the exemption from
military service granted to specific representatives of religious
societies falls within the scope of that provision. It follows that
Article 14 read in conjunction with Article 9 is applicable in the
instant case.
- The
Court has established in its case-law that in order for an issue to
arise under Article 14 there must be a difference in the treatment of
persons in relevantly similar situations (D.H. and Others
v. the Czech Republic [GC], no. 57325/00, §
175, ECHR 2007). Such a difference of treatment is discriminatory if
it has no objective and reasonable justification; in other words, 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. The Contracting State enjoys a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment (Stec
and Others v. the United Kingdom [GC], nos. 65731/01 and
65900/01, §§ 51-52, ECHR 2006-VI; Burden v. the
United Kingdom [GC], no. 13378/05, § 60, 29 April 2008).
- In
the instant case, the Court first observes that the exemption from
military service under section 24(3) of the Military Service Act is
exclusively linked to membership of recognised religious societies
performing specific services of worship or religious instruction. The
applicant claimed that he performed similar services within the Bund
Evangelikaler Gemeinden in Österreich. However, the Bund
Evangelikaler Gemeinden in Österreich was at the time a
registered religious community and not a religious society, and there
was thus no room for an exemption under the above-mentioned
legislation.
- The
Government argued that the applicant had not been discriminated
against, because the criterion that a person applying for exemption
from military service must be a member of a religious society was
only one condition among others and the applicant would not, in any
event, have fulfilled the further conditions as he had not completed
a course of theological studies at university or at a comparable
level of education. The Court is not persuaded by this argument.
Since the competent authority explicitly based its refusal of the
applicant's request on the ground that he did not belong to a
religious society, there is no need to speculate as to what the
outcome would have been if the decision had been based on other
grounds.
- The
Court has to examine therefore whether the applicant, who does not
belong to a religious group which is a religious society within the
meaning of the 1874 Recognition Act, may claim to be in a relevantly
similar or analogous position to a member of such a group performing
one of the functions described in Section 13a § 1 of the
Civilian Service Act.
- The
Court would point out at the outset that the criterion of belonging
to a recognised religious society, on which the Austrian authorities
had relied in refusing the applicant's request for exemption from
civilian service is not, as such, discriminatory. In the case of
Religionsgemeinschaft der Zeugen Jehovas and Others (no.
40825/98, 31 July 2008) the Court made it clear that a
difference in treatment between religious groups which resulted in
granting a specific status in law – to which substantial
privileges were attached – while refusing this preferential
treatment to other religious groups which had not acceded to this
status, was compatible with the requirements of Article 14 read in
conjunction with Article 9 as long as the State set up a
framework for conferring legal personality on religious groups to
which a specific status was linked, all religious groups which so
wished had a fair opportunity to apply for this status and the
criteria established were applied in a non-discriminatory manner
(ibid., § 92). In other words such a privileged status is a
right which a religious community may apply for if it feels that such
status would facilitate the religious society's pursuance of its
religious aims. By its very nature, such a decision on the status of
a legal person has repercussions for those persons who are affected
by legal provisions in their position as members of that community
and, accordingly, have to assume the consequences arising from their
membership.
- It
is therefore essential that the religious community of which the
applicant is a member and on the basis of which membership he sought
exemption from civilian service should have been registered, upon its
own request, as a religious community within the meaning of the 1988
Religious Communities Act. Further there is no indication that the
religious community applied for recognition as a religious society
within the meaning of the 1874 Recognition Act and that such a
request was refused, even less that it was refused on grounds
incompatible with the requirements of Article 9 of the
Convention.
- This
being so the Court considers that the applicant, being a member of a
registered religious community when applying for exemption from
civilian service under section 13a (1) of the Civilian Service Act
had not been in a relevantly similar or analogous situation as a
member of a recognised religious society. There has therefore been no
violation of Article 14 taken in conjunction with Article 9
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- The
applicant also relied on Article 9 of the Convention in complaining
that he was not exempt from military service, unlike persons assuming
a comparable function in religious communities recognised as
religious societies.
- In
the circumstances of the present case the Court considers that the
substance of this complaint has been sufficiently taken into account
in its above assessment that led to the finding that there had been
no violation of Article 14 read in conjunction with Article 9 of
the Convention. It follows that there is no cause for a separate
examination of the same facts from the standpoint of Article 9 of the
Convention alone.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN TOGETHER WITH ARTICLE 4
- The
applicant complained that the fact that he was not exempt from
military service while assuming a function within a religious
community which was comparable to that of members of recognised
religious societies who were exempt from military service constituted
discrimination on the ground of his religion prohibited by Article 14
of the Convention, taken together with Article 4.
Article 4
§§ 2 and 3 of the Convention reads as follows:
“2. No one shall be required to perform
forced or compulsory labour.
3. For the purpose of this article the term
'forced or compulsory labour' shall not include:
(a) any work required to be done in the
ordinary course of detention imposed according to the provisions of
Article 5 of [the] Convention or during conditional release from
such detention;
(b) 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;
(c) any service exacted in case of an
emergency or calamity threatening the life or well-being of the
community;
(d) any work or service which forms part of
normal civic obligations.”
- The
Court considers that, in view of its finding under Article 14, read
in conjunction with Article 9 of the Convention, there is no need to
examine this question also from the point of view of Article 14 read
in conjunction with Article 4, all the more so as the core issue,
whether the difference in treatment was based on the criterion of
“being a member of a religious society”, has already been
sufficiently dealt with above.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 9
of the Convention;
2. Holds that there is no separate issue under
Article 9 of the Convention alone;
3. Holds that it is not necessary to examine the
complaint under Article 14 taken in conjunction with Article 4
§§ 2 and 3 (b) of the Convention.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
