CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 avril 2001

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Ress , President ,   Mr   A. Pastor Ridruejo ,   Mr   L. Caflisch ,   Mr   J. Makarczyk ,   Mr   V. Butkevych ,   Mr   J. Hedigan ,   Mrs   S. Botoucharova , judges , and Mr V. Berger , Section Registrar , Having regard to application no. 37358/97 introduced with the European Commission of Human Rights (the Commission) on 30 July 1997 by Mr   Dian Dimitrov and registered on 12 August 1997, application no.   37988/97 introduced with the Commission on 8 August 1997 by Mr   Krasimir Savov and registered on 2 October 1997 and application no.   39565/98 introduced with the Commission on 24 September 1997 by Mr   Atanas Vishanov and registered on 29 January 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court, Having regard to the correspondence between the parties following the communication of the applications on 15 June 2000 to the respondent Government, Having deliberated, decides as follows: THE FACTS All three applicants are Bulgarian citizens. Mr Dian Dimitrov was born in 1976 and resides in Popovo. Mr Krasimir Savov was born in 1975 and lives in Plovdiv. Mr Atanas Vishanov was born in 1973 and resides in Dimitrovgrad. The applicants were represented by Mrs L. Alexandrova, Mrs I. Vandova and Mrs Z. Kalaydjieva, lawyers practising in Sofia, and Mr P. Bitsaxis, a lawyer practising in Athens. At a later stage they were represented by Mr   A.   Garay, a lawyer practising in Paris. The respondent Government were represented by their agents, Mrs   V.   Djidjeva and Mrs G. Samaras, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. All three applicants are Jehovah’s Witnesses who were convicted for having refused to serve in the army on grounds of their religious conscience. Mr Dian Dimitrov was convicted twice, in 1995 and 1996, and sentenced to a total of ten months’ imprisonment of which he served effectively about seven months. Mr Krasimir Savov was also convicted twice, in 1995 and 1998, and was sentenced to a total of two years’ imprisonment of which he served effectively at least one year. Mr Atanas Vishanov was convicted in 1996 and sentenced to pay a fine. Article 59 § 2 of the Bulgarian Constitution, adopted in 1991, provides that military service, and “the conditions and procedure for exemption therefrom or for their replacement by substitute service, shall be regulated by act of Parliament”. At the time of the applicant’s refusal to serve in the army, military service was regulated by the Military Service Act of 1958. It did not mention substitute service. In December 1995 Parliament adopted the Defence and Armed Forces Act, in force since 27   February   1996. It replaced the 1958 law. Its section   84 provides: “(1)     The duty to perform conscription military service may be replaced by substitute service. (2)     The conditions and the rules for performing substitute service shall be determined by act of Parliament.” An act of Parliament regulating substitute service was adopted in November 1998 and entered into force on 1 January 1999. Persons convicted before 1 January 1999 for having refused to do military service on grounds of conscientious objection have not been granted amnesty. COMPLAINTS All applicants complained under Article 9 of the Convention that there had been a violation of their right to freedom of religion and conscience. Between 1995 and 1998 they had been convicted and sentenced for having refused to serve in the army allegedly only because Parliament had been slow in adopting a law establishing substitute service for conscientious objectors, despite a constitutional provision permitting such substitute service. In the applicants’ view the measures against them were thus unlawful and not necessary in a democratic society. They also complained under Article 7 of the Convention that they were convicted of acts which did not constitute a criminal offence, in view of the Constitutional provision allowing substitute service. Mr Dimitrov further alleged that his imprisonment was in violation of Article 5 of the Convention. The applicants also raised complaints under Articles 6 and 8 of the Convention. THE LAW Following the communication of the applications to the respondent Government, on 21 November 2000 the applicants’ representatives submitted the text of a draft friendly settlement dated 15 November 2000 and signed by the parties. On 16 March 2001 the Agent of the Government informed the Court that on 8 March 2001 the agreement had been approved and had become final. Having regard to the similarities in the above applications the Court finds it convenient to join them (Rule 43 § 1 of the Rules of Court). The agreement reached between the applicants and the respondent Government, insofar as relevant, reads as follows: “[T]he parties agree as follows: a)     all criminal proceedings and judicial sentences in Bulgaria of Bulgaria citizens since 1991 (especially but not limited to ... Dian Dimitrov, Krasimir Savov and Atanas Vishanov) for refusing military service by virtue of their individual conscientious objection but who were willing at the same time to perform alternative civilian service shall be dismissed and all penalties and/or disabilities heretofore imposed in these cases shall be eliminated as if there was never a conviction for a violation of the law, thus the Council of Ministers of the republic of Bulgaria undertakes the responsibility to introduce draft legislation before the National Assembly for a total amnesty for these cases, b)     That the alternative civilian service in Bulgaria is performed under a purely civilian administration and the military authority is not involved in civilian service and such service shall be similar in duration to that required for military service by the law on military service then in force, c)     That conscientious objectors have the same rights as all Bulgarian citizens to manifest their beliefs whether alone or in union with others after hours and on days off during the term of performing said civilian service without prejudice, sanction or another disability or impediment (see ... Kokkinakis v. Greece [judgment]), d)     That concerning the applicants Diyan Dimitrov and Krasimir Savov, who were convicted and sentenced to imprisonment for refusing military service by reason of their individual conscientious objection prior to the [adoption of the law on substitute service in force since 1 January 1999], the respondent Government shall endeavour to obtain legal authorisation to have the effective service of said sentences to constitute a complete fulfilment of their Civil Alternative Service, e)     That the respondent government will pay each individual [applicant] the sum of 2,500 Bulgarian levs ... for costs and expenses, f)     The Applicants, ..., having the Bulgarian Government fully complying with the conditions listed above on points a, b, c, d and e, agree to withdraw their petitions against Bulgaria, filed with the European Court of Human Rights.” The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1(b) of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article   37   §   1 in   fine of the Convention). Accordingly, the case should be struck out of the list. For these reasons, the Court unanimously Decides to join the applications; Decides to strike the applications out of its list of cases.   Vincent Berger   Georg Ress   Registrar   President