PROCEDURE

The case originated in an application (no. 33001/03) 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 Matthias Stefan Koppi (“the applicant”), on 29 September 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 account 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 own were exempted.

By a decision of 5 January 2006 the Court declared the application partly admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1982 and lives in Rankweil.

The applicant is a member of the “Bund Evangelikaler Gemeinden in Österreich”, which became a registered religious community (eingetragene Bekenntnisgemeinschaft) under the Registered Religious Communities Act 1998 (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften) on 11 July 1998.

From 2000 to 2001 the applicant attended the one-year course of the St Chrischona theological seminary (Bibelschule) in Switzerland. Since then he has been giving religious instruction to the youth and has been working as a municipal preacher (Prediger).

On 27 September 2000 the applicant filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung).

On 16 November 2000 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).

On 20 December 2000 the applicant requested the Minister of Internal Affairs to apply section 13a § 1 of the Civilian Service Act in conformity with the Constitution and to exempt him from the obligation to perform civilian service. He submitted that this provision exempted members of recognised religious societies who performed specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he, as a student of the theological seminary St. Chrischona, had a comparable clerical position within a registered religious community, namely the “Bund Evangelikaler Gemeinden in Österreich”. Consequently, he should be also exempted from civilian service.

On 18 January 2002 the Minister of Internal Affairs dismissed the applicant's request. The decision referred to the findings of the Constitutional Court (Verfassungsgerichtshof) in a decision of 11 November 1998, in which it had held that exemption from the obligation to perform civilian service under section 13a of the Civilian Service Act merely applied to members of recognised religious societies and could not be extended to members of registered religious communities.

On 13 March 2002 the applicant filed a complaint with the Constitutional Court.

On 7 October 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success.

On the applicant's request the Constitutional Court transmitted his complaint to the Administrative Court (Verwaltungsgerichtshof).

On 18 February 2003 the applicant supplemented his complaint. On 18 March 2003 the Administrative Court, referring to the above-mentioned decision of 11 November 1998 by the Constitutional Court, dismissed the complaint. This decision was served on the applicant's counsel on 9 April 2003.