CASE OF GUTL v. AUSTRIA
Violation of Art. 14+9;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1977 and lives in Belgrade (Serbia). 7. On 6 July 1991 the applicant was baptised in accordance with the ceremonial rite of the Jehovah’s Witnesses and became an active member. On 1 December 1995 he assumed the function of a preacher (“special full-time servant” or “regular pioneer” – Sondervollzeitdiener, allgemeiner Pionier). 8. On 20 December 1995 the Styrian Military Authority (Militär-kommando) found the applicant fit to perform military service. It subsequently called him up (Einberufungsbefehl) to begin his military service on 1 July 1996. That order was later revoked. 9. The applicant, on 13 January 1997, filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung). 10. Subsequently, on 14 April 1997, 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). 11. From 28 July 1997 until 1 July 1998 the applicant lived in a community of preachers (“Bethel family” – Bethelfamilie), which, in the applicant’s view, is similar to a religious order (Orden) and is called the Religious Order of the Jehovah’s Witnesses (Orden der Sonder-vollzeitdiener der Zeugen Jehovas). 12. On 1 April 1998 the Ministry for Internal Affairs ordered the applicant to commence his civilian service (Zuweisungsbescheid) with the Styrian Regional Fire Brigade (Landesfeuerwehrkommando Steiermark) on 2 June 1998. 13. On 17 April 1998 the applicant became a deacon (“ministerial servant” – Diakon, Dienstamtgehilfe) within the Jehovah’s Witnesses. 14. On 30 April 1998 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Ministry’s order of 1 April 1998, also requesting the suspension of its effect. The applicant submitted that he had been living in a community of preachers since 28 July 1997 and devoted all his time to religious activities. On 17 April 1998 he had become a deacon and aspired to assume the function of an elder within the Jehovah’s Witnesses. Referring to German law (section 10(1)(3) of the German Civilian Service Act) and the case-law and practice of the Federal Administrative Court (BVerwG, 29 September 1989, Zl. 8 C 53.87), he argued that persons in a similar situation (preachers and deacons) were exempt from compulsory military or civilian service. Further, the applicant complained that section 13a(1) of the Civilian Service Act exempted only members of recognised religious societies performing specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he held a comparable clerical position within the Jehovah’s Witnesses. Furthermore, section 11(1) of the newly introduced Federal Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as the “1998 Act”), which had entered into force on 10 January 1998, established that recognition under the Recognition Act was only possible after ten years’ existence as a registered religious community. Therefore this new provision precluded any recognition during the following ten years and made the Recognition Act inapplicable until 2008. The applicant requested the Constitutional Court to revoke the restriction limiting the application of section 13a(1) of the Civilian Service Act to “recognised religious societies”, and in the alternative to revoke the ten-year’ requirement laid down in section 11(1) of the 1998 Act. 15. On 8 June 1998 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It further dismissed the applicant’s request for his complaint to have suspensive effect. 16. Subsequently, on 24 June 1998, the applicant agreed with the Ministry for Internal Affairs that he would begin his civilian service in an institution for disabled persons on 1 July 1998, and he consequently left the community of preachers. 17. On 7 July 1998 the applicant requested the Constitutional Court to transmit his complaint of 30 April 1998 to the Administrative Court (Verwaltungsgerichtshof). 18. On 23 July 1998 the Constitutional Court granted the applicant’s request. 19. On 18 August 1998 the applicant supplemented his complaint and requested the Administrative Court to institute proceedings to review the constitutionality (Gesetzesprüfungsverfahren) of the wording “recognised religious societies” in section 13a(1) of the Civilian Service Act. In the alternative, he requested that the provision at issue be interpreted in conformity with the principle of equality. He thus argued that, in view of his position as a deacon in the Jehovah’s Witnesses, he should be dispensed from the obligation to perform civilian service as his position involved supporting elders by guiding the communities, carrying out clerical work in cooperation with other fellow Jehovah’s Witnesses, giving Bible readings, speeches and commentaries during worship and offering guidance for prayers; accordingly, his functions were equivalent to those of members of registered religious societies who provided services relating to spiritual welfare or clerical teaching after graduating in theological studies, or to those of students of theology who were preparing to assume a clerical function. 20. By a decision of 10 November 1998 the Administrative Court dismissed his complaint. It noted that the 1998 Act and in particular section 11(1) had not been applied and were not to be applied by the Ministry for Internal Affairs in the applicant’s case. Rather, the Ministry had to apply section 13a(1) of the Civilian Service Act, requiring recognition of a religious society as a precondition for exemption from civilian service. The provision as such raised no concerns as regards constitutionality, since its objective was not to grant an exemption from the obligation to perform civilian service to every functionary of a religious community, whether or not it was recognised. It further held that the impugned provision, on account of its explicit wording, could not be interpreted in the manner suggested by the applicant. The decision was served on the applicant’s counsel on 15 January 1999. 21. On 30 June 1999 the applicant ended his civilian service and, on 1 July 1999, he rejoined the Religious Order of the Jehovah’s Witnesses, where he stayed until the end of July 2000. Subsequently, he left the community of preachers, continued to work as a preacher and received further clerical training. 22. In September 2003 the applicant began to do missionary work as a preacher in Serbia and Montenegro. 23. 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.” 24. For a detailed description of the legal situation in Austria in this field see Löffelmann v. Austria (no. 42967/98).