PROCEDURE

The case originated in an application (no. 28648/03) 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 Gerhard Lang (“the applicant”), on 26 August 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 the ground 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 functions were exempted.

On 17 November 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1969 and lives in Altmünster.

Upon his baptism on 30 July 1983 the applicant became a member of the recognised religious community of the Jehovah’s Witnesses in Austria, within which he assumed the function of a preacher (Prediger) and, since 6 November 1997, an elder (Ältester) in the Jehovah’s Witnesses’ community in Gmunden. This function includes providing pastoral care to the community, leading church services and preaching.

In September 2000 the Upper Austrian Military Authority (Militärkommando) ordered the applicant to undergo examinations as to his ability to perform military service. The applicant appealed against the order, claiming that he should be dispensed from military service since he performed a function within the Jehovah’s Witnesses which was equivalent to that of members of a recognised religious society who were exempt from military service under section 24(3) of the Military Service Act (Wehrgesetz). To restrict such a privilege to members of recognised religious societies was not objectively justified and was therefore in breach of the Federal Constitution.

On 9 October 2000 the Upper Austria Military Authority dismissed the applicant’s appeal. On 14 December 2000 the Federal Minister for Defence (Bundesminister für Landesverteidigung) confirmed that decision. Both authorities refused the applicant’s appeals on the ground that he did not belong to a recognised religious society.

Subsequently, on 25 January 2001, the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), requesting it to repeal the wording “recognised religious societies” in section 24(3) of the Military Service Act.

On 25 September 2001 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It found that the applicant’s obligations under the Military Service Act did not interfere with the internal rules and practices of the religious community at issue. It furthermore referred to earlier decisions dealing with the legal status of religious communities and their difference from recognised religious societies under the Recognition Act.

On 23 May 2003 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant’s complaint. It found that exemption from the obligation to perform military service merely applied to members of recognised religious societies and could not be extended to members of registered religious communities. This decision was served on the applicant’s counsel on 4 July 2003.

On 26 August 2003 the applicant asked the Federal Ministry for Defence to take no action until the European Court of Human Rights had decided on his application. The applicant was informed that an instruction had been issued to the Upper Austrian Military Authority not to call him up until further notice.