CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    AS TO THE ADMISSIBILITY OF                     Application No. 11734/85                   by Siegfried NICOLUSSI                   against Austria             The European Commission of Human Rights sitting in private on 8 May 1987 the following members being present:                 MM. C. A. NØRGAARD, President                   G. SPERDUTI                   F. ERMACORA                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ                 Mr.   H. C. KRÜGER 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 12 June 1985 by Siegfried NICOLUSSI against Austria and registered on 4 September 1985 under file N° 11734/85;           Having regard to the report provided for in Rule 40 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 an Austrian citizen, born in 1956.   He is primary school teacher and resides in Innsbruck, Austria.   Before the Commission he is represented by his lawyer, Dr. Friedrich Schwank.           Pursuant to Section 5 of the Civilian Service Act (Zivildienstgezetz) the applicant, for reasons of conscience, petitioned the Civilian Service Commission (Zivildienstkommission beim Bundesministerium für Inneres) on 29 April 1983 that he be allowed to perform an alternative civilian service rather than the otherwise mandatory military service.           The applicant's petition was heard on 24 August 1983, in a non-public hearing before the Civilian Service Commission, 5th Senate.   In its ruling of the same day, the Commission rejected the applicant's petition, relying in relevant parts on Section 2 para. 1 in conjunction with Section 6 para. 1 and para. 2 of the Civilian Service Act.           On 19 October 1983 the applicant appealed against the above decision to the Civilian Service Appeals Board (Zivildienstoberkommission), 3rd Senate.   Following a non-public hearing the Appeals Board in its ruling of 26 April 1984, confirmed the decision of the Civilian Service Commission of 24 August 1983 in all points.           On 20 August 1984 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), petitioning, inter alia, that any conscription notice be given suspensive effect while his appeal was pending.   This the Constitutional Court granted in its ruling of 28 January 1985.   The applicant submitted his completed complaint to the Constitutional Court on 20 December 1984.   In his complaint, lodged pursuant to Section 144 of the Federal Constitution, the applicant argued that his constitutionally protected rights had been violated in the following manner:   -        the Civilian Service Commission and the Appeals Board had not taken sufficient cognizance of their statutory mandate under the Civilian Service Act, which grants a military service candidate under certain circumstances the right to perform a civil service;   -        his right to equality before the law within the meaning of Article 2 of the Basic Law (Staatsgrundgesetz), of 21 December 1867 had been violated;   -        as set out in Article 14 of the Basic Law and Article 9 of the European Convention on Human Rights the applicant's right to freedom of conscience and belief had been violated; and   -        his right to be heard by a tribunal established by law within the meaning of Article 83 para. 2 of the Federal Constitution (Bundesverfassungsgesetz) had been violated.           In its decision of 4 March 1985 the Constitutional Court rejected the applicant's complaint, having found no violation of the constitutionally protected rights invoked by the applicant or of any other constitutional rights.   Concerning the applicant's complaint regarding a violation of his right to freedom of conscience and belief under Article 14 of the Basic Law, the Court held that this Article concerned only religious aspects.   Since, however, the applicant had not relied on such aspects before the Civilian Service Commission and the Appeals Board it followed that there was no violation of Article 14 of the Basic Law.           On 6 August 1985 the applicant again petitioned the Civil Service Commission that he be allowed to perform a civil service. However, on 25 September 1985 the Commission rejected the petition on the ground that the applicant did not fulfil a formal requirement.           The applicant appealed against this decision to the Civilian Service Appeals Board which quashed the decision and sent the case back to the lower instance for reconsideration on the merits.           Accordingly the applicant appeared before the Civilian Service Commission on 4 July 1986 and was advised on the same day that he had been recognised as a conscientious objector and released from his obligation to render military service.   COMPLAINTS           The applicant's complaints relate to the proceedings which ended with the decision of the Constitutional Court on 4 March 1985. Although his recognition as a conscientious objector was the objective which he had been pursuing from the outset the applicant submits that the fact that he has subsequently been recognised as such does not rectify or influence the alleged violations of the Convention as submitted by him and which may be summarised as follows:           The applicant invokes Article 6 para. 1 of the Convention.   He is of the opinion that what is at stake in a civilian service hearing is a civil right within the meaning of this Article.   It is the right afforded by Section 2 para. 1 of the Civilian Service Act to fulfil a State's military service obligations in a manner consistent with a petitioner's conscience and belief.           Furthermore the applicant alleges that the Act as applied did not afford the Civilian Service Commission and the Appeals Board the guarantees necessary to uphold the appearance of their independence from outside pressures, and that in the hearings held relative to the applicant's petition before the Civilian Service Commission and the Civilian Service Appeals Board, the impartiality of their organs was capable of appearing open to doubt, constituting a violation of Article 6 para. 1 of the Convention.           The applicant also invokes Article 9 of the Convention.   He alleges that since the Civilian Service Commission and the Appeals Board established under the Act to rule on civilian service candidates' petitions, do not give the appearance of functioning with the requisite degree of independence within the meaning of Section 43 para. 4 of the Act and Article 6 para. 1 of the Convention, the applicant's right under Article 9 of the Convention to freedom of thought and conscience has not been respected.           Under Article 14 in conjunction with Article 9 of the Convention the applicant submits that the Constitutional Court's interpretation of Article 14 of the Basic Law (limited to religious aspects), when taken in conjunction with Article 9 of the Convention, constitutes a discrimination vis-à-vis those who choose to substantiate their pacifist convictions in a civilian service petition through utilisation of a more secular line of persuasion. Such candidates are therefore discriminated against when compared with those in an analogous position who choose to support their petition by reference to religious belief and to religion-derived doctrine.   THE LAW   1.       The applicant has complained of the proceedings concerning his request for permission to perform civilian service.           The applicant has submitted that, when determining whether a person should be recognised as a conscientious objector or not, the Civilian Service Commission and the Appeals Board determine a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Furthermore, the applicant alleges that their independence appeared to be open to doubt in contravention of Article 6 para. 1 (Art. 6-1) of the Convention.           From the case-law of the Commission, however, it is clear that "civil rights" do not include those rights or obligations which may exist for the individual, not in his capacity as a private person, but as a citizen, and which relate to the essence of public law.   In this respect the Commission has found Article 6 para. 1 (Art. 6-1) to be inapplicable to proceedings concerning military service and alternative service (e.g.   Nos. 3435-38/67, Dec. 19.7.68, Yearbook 11, p. 562 (604), No. 8556/79, Dec. 3.10.79, unpublished and No. 8881/80, Dec. 6.7.80, unpublished.   Consequently Article 6 (Art. 6) of the Convention is not applicable in the present case.           It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.       The applicant has also complained of an unjustified interference with his right to freedom of thought and conscience under Article 9 (Art. 9) of the Convention and of discrimination, as regards the exercise of this right, contrary to Article 14 (Art. 14) of the Convention. Furthermore, he has complained that, since the Austrian Constitutional Court allegedly refused to consider his case under Article 9 (Art. 9) of the Convention when he initially tried to be exempted from military service and since the Court limited its examination under Article 14 of the Basic Law to religious matters not invoked by the applicant, he was not afforded an effective remedy as secured to him under Article 13 (Art. 13) of the Convention.           The Commission notes, however, that the applicant has never been asked to do military service and that he has, subsequent to the proceedings of which he complains and subsequent to the introduction of his application to the Commission, successfully applied to be released of such future duty.   In such a situation the Commission finds that any possible defects that may have existed prior to his successful application must be considered to have been rectified by his being allowed to perform a civilian service as requested by him. In these circumstances it follows that the applicant can no longer claim to be a victim of a violation of the Convention.           This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                       (C. A. NØRGAARD)