CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 22956/93                       by Thomas SPÖTTL                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 September 1993 by Thomas SPÖTTL against Austria and registered on 19 November 1993 under file No. 22956/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 28 April 1995 and the observations in reply submitted by the applicant on 5 July 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1963 and residing in Feldkirch (Austria).   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 11 July 1991 an induction order (Einberufungsbefehl) of the Vorarlberg Military Authority (Militärkommando) by which the applicant was ordered to perform military service was served on him.        On 22 July 1991 the applicant filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector.        On 13 November 1992 the Federal Minister for Internal Affairs recognised the applicant as a conscientious objector.   Accordingly, he was exonerated from the duty to perform military service but liable to perform civilian service (Zivildienst).        On 11 December 1992 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Minister's decision.   He complained that the duty to perform civilian service constituted a discrimination on the ground of sex prohibited by Article 4 in conjunction with Article 14 of the Convention as women were not subject to such a duty.        On 14 June 1993 the Constitutional Court, referring to its earlier case-law, declined to entertain the applicant's complaint for lack of sufficient prospects of success and decided to remit the case to the Administrative Court (Verwaltungsgerichtshof).        On 23 November 1993 the Administrative Court rejected the applicant's complaint.        On 8 April 1994 the Federal Minister for Internal Affairs ordered the applicant to begin his civilian service in an institution for disabled persons on 1 June 1994.        On 25 April 1994 the applicant lodged a further complaint with the Constitutional Court against the Minister's decision of 8 April 1994 and also requested that suspensive effect be granted.        On 25 May 1994 the Constitutional Court refused to grant suspensive effect.   B.    Relevant domestic law        Article 9a para. 3 of the Federal Constitution reads as follows:        "Every male Austrian citizen is liable for military service.      Conscientious objectors who refuse the fulfilment of compulsory      military service and are exonerated therefrom must perform an      alternative service.   Details are regulated by ordinary law."        Section 15 para. 1 of the Military Service Act (Wehrgesetz) reads as follows:        "Only male Austrian citizen, who have attained the age of 18      years and have the necessary physical and mental qualifications      for service in the Federal Army can be dafted into the Federal      Army."        Section 2 of the Civilian Service Act (Zivildienstgesetz) reads as follows:        "Persons liable for military service can, on request, be      exonerated from the duty to perform military service and be      liable to perform civilian service if they refuse on serious and      credible grounds to use force of arms against others, save for      legitimate self defence or defence of others, and therefore would      be in a profound moral conflict if they performed military      service."        In a decision of 2 October 1991 the Constitutional Court, upon a complaint lodged by a woman whose request to join the Federal Army had been rejected by the administrative authorities, found that a difference in treatment regarding military service between men and women was in accordance with the Federal Constitution.   It held that the obligation imposed only on men to perform military service was provided for in Article 9a para. 3 of the Federal Constitution and as a constitutional provision limited the scope of application of other constitutional provisions, in particular the principle of equality.   COMPLAINTS        The applicant complains under Article 14 in conjunction with Article 4 para. 2 of the Convention of discrimination on the ground of sex in that he as a man was liable to perform civilian service while women had no such duty.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 September 1993 and registered on 19 November 1993.        On 17 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 28 April 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 5 July 1995.   THE LAW   1.    The applicant complains under Article 14 in conjunction with Article 4 para. 2 (Art. 14+4-2) of the Convention of discrimination on the ground of sex in that he as a man was liable to perform civilian service while women had no such duty.        Article 4 para. 2 and 3 (b) (Art. 4-2, 4-3-b) 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:        (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;"        Article 14 (Art. 14) of the Convention, insofar as relevant, reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, ..."        The Government submit that the applicant has failed to introduce his complaint with the Commission within the six months' time-limit under Article 26 (Art. 26) of the Convention.   The right to perform civilian service is directly liked to the military service obligation under the Federal Constitution as civilian service is an alternative form of service for conscientious objectors.   An obligation to perform civilian service can only apply to persons who at the same time are also subject to military duty.   Since women are not liable to military service they are not liable to civilian service either.   Therefore, the applicant should have brought an application with the Commission against the induction order served on him on 11 July 1991.        This is disputed by the applicant.   He submits that exemption from military service did not lead automatically to the obligation to perform civilian service as exceptions are made for students of theology who prepare for the office of a priest and for members of the religious community of Jehovah's Witnesses.   The Minister's decision of 13 November 1992 to recognize him as a conscientious objector was the first domestic decision which imposed on him a service duty in violation of the prohibition of gender discrimination.   Therefore, he had lodged his application in time.        The Commission observes that in Austria - as in other European countries - the obligation to perform civilian service is directly linked to the obligation to do military service as, in general, a person is only liable to civilian service if he is liable to compulsory military service.   The applicant was served on 11 July 1991 with an induction order.   However, this induction order did not take effect as the applicant filed a request for recognition as a conscientious objector.   Only after this request had been granted by the authorities, did the applicant become effectively liable for compulsory (civilian) service.   Having exhausted domestic remedies against this decision the applicant introduced his complaint with the Commission.        In these circumstances the Commission cannot find that the applicant should have introduced an application with the Commission already against the induction order.   It follows that the applicant has complied with Article 26 (Art. 26) of the Convention.   2.    The Government submit that the applicant cannot rely on Article 14 of the Convention in conjunction with Article 4 (Art. 14+4) since under paragraph 3 (b) of Article 4 (Art. 4-3-b) the entire complex of military and alternative non-military service is excluded form the scope of the Convention.        This is disputed by the applicant.        The Commission recalls that Article 14 (Art. 14) of the Convention complements the other substantive provisions of the Convention and Protocols.   Although the application of Article 14 (Art. 14) of the Convention does not presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more   of the latter (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, para. 71).        The Commission recalls further that para. 3 of Article 4 (Art. 4-3) is not intended to "limit" the exercise of the right guaranteed by para. 2, but to "delimit" the very content of that right, for it forms a whole with paragraph 2 and indicates what the term 'forced or compulsory labour' shall not include (Eur. Court H.R., Karlheinz Schmidt judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22).   The limitations permitted, particularly any national legislation concerning compulsory military service and substitute service by conscientious objectors, must satisfy the requirements of Article 14 (Art. 14), that is to say, be non-discriminatory both in their character and in their application (Grandrath v. Germany, Comm. Report 29.6.67, para. 40, Yearbook 10 p. 626 at p. 680).        It follows that Article 14 read in conjunction with Article 4 paras. 2 and 3 (b) (Art. 14+4-2, 14+4-3-b) applies.   3.    The Government submit that the difference in treatment between men and women as regards the obligation to perform military service or alternative civilian service is justified. The obligation to perform civilian service cannot be considered in isolation.   It has to be examined in the light of the obligation to perform military service since a compulsory civilian service without an underlying duty to perform military service would not be in accordance with Article 4 paras. 2 and 3 (b) (Art. 4-2, 4-3-b) of the Convention.   As regards the obligation to perform military service the difference in treatment between men and women is justified because of the difference between the sexes.   Furthermore, a general European standard exists according to which women should not be subject to any kind of mandatory service of a military nature, as a comparison among European states shows that none of them makes compulsory military service incumbent on women. A number of countries have merely made it possible for women to perform voluntary tasks within the military service.        The applicant submits that the military service makes high demands on the physical and mental capability of the persons serving. However, in this respect it can be compared to other activities which had previously been restricted to men, like serving in the police.   The difference in treatment between persons eligible for serving in the police and in the army is not plausible. Furthermore, the mere fact that military service has for a long time been considered an exclusive domain of men cannot justify gender discrimination today.        The Commission recalls that Article 14 (Art. 14) protects individuals, placed in analogous situations, from discrimination (see Eur. Court H.R., van der Mussele judgment of 23 November 1983, Series A no. 70, p. 22, para. 46).   A difference in treatment will not be discrimination prohibited by Article 14 (Art. 14) unless it has no objective and reasonable justification, or unless there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Eur. Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 31).   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 of appreciation will vary according to the circumstances, the subject- matter and its background (No. 17086/90, Dec. 6.12.1991, D.R. 72 p. 245).   In the organisation of their national defence the Contracting States are entitled to a wide margin of appreciation (No. 19583/92, Dec. 20.2.95, D.R. 80-A p. 38).        The Commission notes that the applicant complains essentially about gender discrimination with regard to the obligation under Austrian law to perform civilian service.   However, the Commission observes that the obligation to perform civilian service applies to all persons who, as conscientious objectors, are exempt from the obligation to perform military service.   In view of the fact that women are not obliged to perform military service, they are consequently, as regards the civilian service replacing it, not in the same situation as men.        Insofar the applicant may be understood to complain also about a difference in treatment between men and women with regard to the obligation to perform military service to which the obligation to perform civilian service is an accessory obligation, the Commission is of the opinion that such difference in treatment is justified by objective reasons.    Having regard to the wide margin of appreciation afforded to the Contracting States in relation to the organisation of their national defence, the Commission observes that a common standard exists among the Contracting States according to which women are not liable to mandatory military service.   Such a standard takes into account continuing traditions in the field of national military defence, the opinion of the people and the public interest in maintaining an effective national defence system of those Contracting States which, like Austria, have based their system of national defence on compulsory military service.        In the Commission's view the present case must be distinguished from the situation in the Schmidt case, where the obligation for men to serve in the fire brigade only existed in theory, in view of the sufficient number of volunteers.   Thus, having regard to the fact that only men were liable to a fire service levy as a compensatory contribution, the Court's finding in that case was limited to the assertion that a difference in treatment on the ground of sex in the imposition of a financial burden could not be justified (Karlheinz Schmidt judgment of 18 July 1994, loc. cit., p. 33, para. 28).        The Commission therefore finds that there is no appearance of a violation of the applicant's rights under Article 14 in conjunction with Article 4 paras. 2 and 3 (b) (Art. 14+4-2, 14+4-3-b) 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 First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)