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19.03.2009

 

                               FIRST SECTION

                          CASE OF LANG v. AUSTRIA

                         (Application no. 28648/03)

                                  JUDGMENT

                                 STRASBOURG

                               19 March 2009

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 2  of  the  Convention.  It may be subject to editorial
   revision.

   In the case of Lang v. Austria,

   The  European  Court  of  Human  Rights  (First Section), sitting as a
   Chamber composed of:

   Christos Rozakis, President,
   Nina Vaji,
   Anatoly Kovler,
   Elisabeth Steiner,
   Khanlar Hajiyev,
   Dean Spielmann,
   Sverre Erik Jebens, judges,
   and Sren Nielsen, Section Registrar,

   Having deliberated in private on 17 February 2009,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  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.

   2.  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.

   3.  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.

   4.  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 S: 3).

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   5.  The applicant was born in 1969 and lives in Altmnster.

   6.  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  (ltester)  in the Jehovah's
   Witnesses'  community  in  Gmunden.  This  function includes providing
   pastoral care to the community, leading church services and preaching.

   7.  In   September   2000   the   Upper  Austrian  Military  Authority
   (Militrkommando)  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.

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

   9.  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.

   10.  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.

   11.  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.

   12.    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.

   II.  RELEVANT DOMESTIC LAW

   A.  The obligation to perform military or alternative service

   13.  Article 9 a S: 3 of the Federal Constitution reads as follows:

   "Every   male   Austrian  citizen  is  liable  for  military  service.
   Conscientious  objectors  who  refuse  to  perform compulsory military
   service  and  who  are  dispensed  from  this requirement must perform
   alternative service. The details shall be regulated by ordinary law."

   14.  Section  24(3)  of  the  Military Service Act, as in force at the
   relevant time, read as follows:

   "An  exemption  from  the obligation to perform military 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."

   B.  Religious societies and religious communities

   15.  For  a  detailed description of the legal situation in Austria in
   this field see Lffelmann v. Austria (no. 42967/98).

   THE LAW

   I.  ALLEGED  VIOLATION  OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER
   WITH ARTICLE 9

   16.  The  applicant  complained  that  the fact that he was not exempt
   from  military  service  while  assuming a function with the Jehovah's
   Witnesses  which  was  comparable  to  those  of members of recognised
   religious  societies who were exempt from military service constituted
   discrimination on the ground of his religion, prohibited by Article 14
   of the Convention taken together with Article 9.

   Article 14 of the Convention provides:

   "The  enjoyment  of  the  rights  and  freedoms  set  forth  in  [the]
   Convention  shall be secured without discrimination on any ground such
   as  sex, race, colour, language, religion, political or other opinion,
   national  or  social  origin,  association  with  a national minority,
   property, birth or other status."

   Article 9 provides as follows:

   "1.  Everyone  has  the  right  to  freedom of thought, conscience and
   religion; this right includes freedom to change his religion or belief
   and freedom, either alone or in community with others and in public or
   private,  to  manifest  his  religion or belief, in worship, teaching,
   practice and observance.

   2.  Freedom  to  manifest  one's  religion or beliefs shall be subject
   only to such limitations as are prescribed by law and are necessary in
   a  democratic  society  in  the  interests  of  public safety, for the
   protection of public order, health or morals, or for the protection of
   the rights and freedoms of others."

   A.  Admissibility

   17.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of Article 35 S: 3 of the Convention. It further
   notes  that  it  is  not  inadmissible  on  any other grounds. It must
   therefore be declared admissible.

   B.  Merits

   A.  Submissions by the parties

   18.  The  Government  pointed out that Article 9 a S: 3 of the Federal
   Constitution  provided  that every male Austrian citizen was liable to
   perform military service. Exemptions from this obligation were set out
   in  section 24(3)  and  were  linked  to  membership  of  a recognised
   religious society. However, there were also further criteria which the
   applicant  did  not  satisfy either. The applicant had stated that his
   function  was  comparable  to  those  of  persons who were involved in
   spiritual   welfare  or  in  clerical  teaching  after  graduating  in
   theological studies or who were preparing to assume such functions. In
   this  connection,  the  Government stressed that the applicant had not
   stated at any time during the domestic proceedings that he had studied
   theology  at  a  university  or any equivalent institution. Therefore,
   notwithstanding  his  religious denomination, the applicant had failed
   to prove that he complied with any of the four criteria set out in the
   above-mentioned provision. Thus, there was no need to consider whether
   or  not  the applicant had been discriminated against on the ground of
   his  faith. In addition, members of recognised religious societies who
   did  not  comply  with  the criteria laid down in section 24(3) of the
   Military Service Act were not exempt from military service.

   19.  The  Government submitted further that, as the Contracting States
   were  under  no  obligation  to  accept  a refusal to perform military
   service for religious reasons, non-exemption of a person from military
   or  alternative  civilian  service  did  not  raise any concerns under
   Article 9 of the Convention.

   20.    The  applicant  contested  this view and maintained that if the
   relevant domestic legislation provided for exemptions from military or
   alternative   civilian   service,   it   should   do  so  without  any
   discrimination.

   21.  While  it  was  true  that  the  Jehovah's  Witnesses had neither
   universities  nor  faculties within State or church universities, they
   nonetheless  offered  intensive  clerical  training which consisted of
   theoretical  studies and practical experience. Elders and deacons were
   in  charge  of  spiritual  welfare,  guided  the  community's worship,
   provided  social  assistance, celebrated mass, baptisms, marriages and
   funerals,  and  supervised missionary work. The Religious Order of the
   Jehovah's Witnesses had already existed for many decades and had about
   160  members  in  Austria.  Most  of its members lived and worked in a
   community  of  preachers  who  took  part together in morning worship,
   prayer   and   studies;   other   members   were   "special  pioneers"
   (Sonderpioniere)  and  "travelling overseers" ("episcopoi" or bishops)
   who   visited  communities  to  perform  missionary  work  and  ensure
   spiritual welfare. The Austrian authorities and courts only linked the
   granting  of  an  exemption  from  civilian service to membership of a
   recognised  religious  society  and did not examine whether or not the
   person  concerned  performed  comparable functions for the purposes of
   section 24(3) of the Military Service Act.

   B.  The Court's assessment

   22.  As  the Court has consistently held, Article 14 of the Convention
   complements the other substantive provisions of the Convention and the
   Protocols.  It has no independent existence since it has effect solely
   in  relation to "the enjoyment of the rights and freedoms" safeguarded
   by  those  provisions. Although the application of Article 14 does not
   presuppose  a  breach  of  those provisions - and to this extent it is
   autonomous - there can be no room for its application unless the facts
   at  issue  fall  within  the  ambit of one or more of the latter (see,
   among   many   other   authorities,  Van  Raalte  v. the  Netherlands,
   21 February  1997,  S: 33,  Reports of Judgments and Decisions 1997-I,
   and   Camp  and  Bourimi  v.  the  Netherlands,  no. 28369/95,  S: 34,
   ECHR 2000-X).

   23.  Further,  the  freedom  of  religion  as  guaranteed by Article 9
   entails, inter alia, freedom to hold religious beliefs and to practise
   a   religion.  While  religious  freedom  is  primarily  a  matter  of
   individual  conscience,  it  also  implies,  inter  alia,  freedom  to
   manifest  one's  religion,  alone and in private, or in community with
   others,  in  public  and  within  the  circle of those whose faith one
   shares. Article 9 lists the various forms which manifestation of one's
   religion  or  belief  may take, namely worship, teaching, practice and
   observance  (see,  as  a  recent authority, Leyla ahin v. Turkey [GC],
   no. 44774/98, S:S: 104,105, ECHR 2005-XI, with further references).

   24.  In the Court's view the privilege at issue - namely the exemption
   from   the   obligation   to   perform   military  service  and  also,
   consequently,  civilian  service,  afforded  to religious societies in
   respect of those who are part of their clergy - shows the significance
   which   the  legislature  attaches  to  the  specific  function  these
   representatives of religious groups fulfil within such groups in their
   collective    dimension.    Observing   that   religious   communities
   traditionally exist in the form of organised structures, the Court has
   repeatedly   found   that   the   autonomous  existence  of  religious
   communities is indispensable for pluralism in a democratic society and
   is, thus, an issue at the very heart of the protection which Article 9
   affords  (see  Hasan and Chaush v. Bulgaria [GC], no. 30985/96, S: 62,
   ECHR 2000-XI).

   25.  As  the  privilege  at  issue  is  intended  to ensure the proper
   functioning  of  religious  groups  in their collective dimension, and
   thus  promotes  a  goal  protected by Article 9 of the Convention, the
   exemption from military service granted to specific representatives of
   religious  societies  comes  within  the  scope  of that provision. It
   follows  that  Article  14  read  in  conjunction  with  Article  9 is
   applicable in the instant case.

   26.  According  to  the Court's case-law, a difference of treatment is
   discriminatory  for the purposes of Article 14 of the Convention if it
   "has  no  objective and reasonable justification", that is, if it does
   not  pursue  a  "legitimate  aim"  or  if  there  is not a "reasonable
   relationship of proportionality between the means employed and the aim
   sought  to be realised". 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 (see, among
   other authorities, Willis v. United Kingdom, no. 36042/97, S: 39, ECHR
   2002-IV).

   27.  In  the instant case, the Court first observes that the exemption
   from  military service under section 24(3) of the Military Service Act
   is  exclusively  linked  to  members of recognised religious societies
   performing  specific services of worship or religious instruction. The
   applicant,  a  member  of  the  Jehovah's  Witnesses,  claimed that he
   performed  similar  services.  However, the Jehovah's Witnesses was at
   the time a registered religious community and not a religious society,
   and  there was thus no room for an exemption under the above-mentioned
   legislation.

   28.  The   Government   argued   that   the  applicant  had  not  been
   discriminated  against,  because  the criterion that a person applying
   for  exemption  from  military service must be a member of a religious
   society  was  only  one condition among others and the applicant would
   not, in any event, have fulfilled the further conditions as he had not
   completed  a  course  of  theological  studies  at  university or at a
   comparable  level  of  education.  The  Court is not persuaded by this
   argument.  Since  the  competent military authorities explicitly based
   their refusal of the applicant's request on the ground that he did not
   belong  to  a religious society, there is no need to speculate on what
   the  outcome  would have been if the decisions had been based on other
   grounds.

   29.  The  Court  has  to  examine  whether the difference in treatment
   between  the applicant, who does not belong to a religious group which
   is a religious society within the meaning of the 1874 Recognition Act,
   and  a  person  who  belongs  to  such  a  group  has an objective and
   reasonable justification.

   30.  In doing so the Court refers to the case of Religionsgemeinschaft
   der Zeugen Jehovas and Others v. Austria (no. 40825/98, 31 July 2008),
   in  which the first applicant, the Jehovah's Witnesses in Austria, had
   been  granted legal personality as a registered religious community, a
   private-law entity, but wished to become a religious society under the
   1874  Recognition  Act  -  that  is,  a  public-law  entity. The Court
   observed   that   under  Austrian  law,  religious  societies  enjoyed
   privileged  treatment  in many areas, including, inter alia, exemption
   from  military service and civilian service. Given the number of these
   privileges  and  their  nature,  the  advantage  obtained by religious
   societies  was  substantial.  In  view of these privileges accorded to
   religious  societies, the obligation under Article 9 of the Convention
   incumbent on the State's authorities to remain neutral in the exercise
   of  their powers in this domain required therefore that if a State set
   up a framework for conferring legal personality on religious groups to
   which  a  specific  status  was  linked, all religious groups which so
   wished  must  have a fair opportunity to apply for this status and the
   criteria  established  must  be applied in a non-discriminatory manner
   (ibid.,  S:  92).  The  Court  found, however, that in the case of the
   Jehovah's Witnesses one of the criteria for acceding to the privileged
   status  of a religious society had been applied in an arbitrary manner
   and  concluded  that  the difference in treatment was not based on any
   "objective  and  reasonable  justification".  Accordingly,  it found a
   violation  of  Article  14 of the Convention taken in conjunction with
   Article 9 (ibid., S: 99).

   31.  In  the  present case, the refusal of exemption from military and
   alternative civilian service was likewise based on the ground that the
   applicant  was  not a member of a religious society within the meaning
   of the 1874 Recognition Act. Given its above-mentioned findings in the
   case of Religionsgemeinschaft der Zeugen Jehovas and Others, the Court
   considers  that  in the present case the very same criterion - whether
   or  not  a  person  applying  for exemption from military service is a
   member  of  a  religious  group  which  is  constituted as a religious
   society  -  cannot  be understood differently and its application must
   inevitably result in discrimination prohibited by the Convention.

   32.  In  conclusion,  section 24(3) of the Military Service Act, which
   provides  for  exemptions  from  the  obligation  to  perform military
   service  exclusively  in the case of members of a recognised religious
   society,  is  discriminatory  and the applicant has been discriminated
   against  on  the ground of his religion as a result of the application
   of  this provision. There has therefore been a violation of Article 14
   taken in conjunction with Article 9 of the Convention.

   II.  ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

   33.  The  applicant  also  relied  on  Article  9 of the Convention in
   complaining  that  he  was  not  exempt  from military service, unlike
   persons  assuming  a  comparable  function  in  religious  communities
   recognised as religious societies.

   A.  Admissibility

   34.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of Article 35 S: 3 of the Convention. It further
   notes  that  it  is  not  inadmissible  on  any other grounds. It must
   therefore be declared admissible.

   B.  Merits

   35.  In the circumstances of the present case the Court considers that
   in  view  of  the  considerations under Article 14 read in conjunction
   with  Article 9  of  the  Convention  there is no separate issue under
   Article 9 of the Convention alone.

   III.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER
   WITH ARTICLE 4

   36.  The  applicant  complained  that  the fact that he was not exempt
   from  military  service  while  assuming a function with the Jehovah's
   Witnesses  which  was  comparable  to  those  of members of recognised
   religious  societies who were exempt from military service constituted
   discrimination on the ground of his religion, prohibited by Article 14
   of the Convention taken together with Article 4.

   Article 4 S:S: 2 and 3 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:

   (a)  any  work required to be done in the ordinary course of detention
   imposed  according  to the provisions of Article 5 of [the] Convention
   or during conditional release from such detention;

   (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;

   (c)  any   service  exacted  in  case  of  an  emergency  or  calamity
   threatening the life or well-being of the community;

   (d)  any   work   or   service   which  forms  part  of  normal  civic
   obligations."

   A.  Admissibility

   37.  The Court notes that this complaint is not manifestly ill-founded
   within  the  meaning  of Article 35 S: 3 of the Convention. It further
   notes  that  it  is  not  inadmissible  on  any other grounds. It must
   therefore be declared admissible.

   B.  Merits

   38.  The Court considers that, in view of its finding under Article 14
   read in conjunction with Article 9 of the Convention, there is no need
   to  examine  this  question  also from the point of view of Article 14
   read in conjunction with Article 4, all the more so as the core issue,
   whether  the  difference in treatment may be based on the criterion of
   "being a member of a religious society", has already been sufficiently
   dealt with above.

   IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

   39.  The  applicant also complained under Article 13 of the Convention
   that  the  Constitutional Court had not given a decision on the merits
   of his complaint.

   Article 13 of the Convention reads as follows:

   "Everyone  whose  rights and freedoms as set forth in [the] Convention
   are  violated  shall  have  an  effective  remedy  before  a  national
   authority  notwithstanding  that  the  violation has been committed by
   persons acting in an official capacity."

   Admissibility

   40.  The  Court notes that Article 13 guarantees the availability of a
   remedy at national level to enforce the substance of Convention rights
   and  freedoms  in  whatever  form they may happen to be secured in the
   domestic  legal order. Thus, its effect is to require the provision of
   a  domestic  remedy  allowing the competent national authority both to
   deal  with  the  substance of the relevant Convention complaint and to
   grant  appropriate  relief (see Smith and Grady v. the United Kingdom,
   nos. 33985/96  and  33986/96,  S: 135,  ECHR 1999-VI). Article 13 does
   not,  however, presuppose that the remedy or remedies resorted to must
   always be successful.

   41.  Turning  to the present case, the Court notes that the applicant,
   who was represented by counsel, had ample opportunity to challenge the
   obligation  to  perform  military  service  at three appellate levels,
   including  two levels of courts. The fact that in the present case the
   Constitutional  Court  refused to deal with the applicant's complaint,
   finding  that it lacked sufficient prospects of success, does not lead
   to  the  conclusion that a complaint to the Constitutional Court would
   in  itself  not  constitute an effective remedy, within the meaning of
   Article 13.

   42.  It  follows  that this complaint is manifestly ill-founded within
   the  meaning of Article 35 S: 3 of the Convention and must be rejected
   in accordance with Article 35 S: 4.

   V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   43.  Article 41 of the Convention provides:

   "If  the Court finds that there has been a violation of the Convention
   or  the  Protocols  thereto,  and  if  the  internal  law  of the High
   Contracting Party concerned allows only partial reparation to be made,
   the Court shall, if necessary, afford just satisfaction to the injured
   party."

   A.  Damage

   44.  The  applicant  did  not submit a claim for damages. Accordingly,
   the Court considers that there is no call to award him any sum on that
   account.

   B.  Costs and expenses

   45.  The applicant claimed 10,164.36 Euros (EUR), plus value-added tax
   (VAT),  for  the  costs  of the domestic proceedings and EUR 3,964.80,
   plus VAT, for the costs of the proceedings before the Court.

   46.  The  Government  argued  that  the costs claimed by the applicant
   were  excessive,  in  particular  as  in  the  proceedings  before the
   military authorities representation by a lawyer was not mandatory.

   47.  The  Court  reiterates that, according to its case-law, it has to
   consider  whether the costs and expenses were actually and necessarily
   incurred in order to prevent or obtain redress for the matter found to
   constitute  a  violation  of  the Convention and were reasonable as to
   quantum. The Court considers that these conditions are met regards the
   costs of the domestic proceedings. It therefore awards the full amount
   claimed  under  this head, namely EUR 10,164.36, plus any tax that may
   be chargeable to the applicant on this amount.

   48.  As  regards  the proceedings before the Court, the applicant, who
   was  represented  by  counsel,  did not have the benefit of legal aid.
   However,  the  Court  agrees  with  the  Government  that the claim is
   excessive. It notes in particular that the application was only partly
   successful  and  was  brought  by  the same lawyer who represented the
   applicants  in the similar cases of Lffelmann v. Austria (cited above)
   and  Gtl v. Austria (no. 49686/99). Making an assessment on an overall
   basis, the Court awards EUR 2,500 under this head, plus any taxes that
   may be chargeable to the applicant on this amount.

   C.  Default interest

   49.  The  Court  considers  it  appropriate  that the default interest
   should  be  based on the marginal lending rate of the European Central
   Bank, to which should be added three percentage points.

   FOR THESE REASONS, THE COURT

   1.  Declares  unanimously  admissible the applicant's complaints under
   Article 4  S:S:  2  and  3  (b) and Article 9, both taken alone and in
   conjunction   with   Article   14  of  the  Convention,  that  he  was
   discriminated  against  on  account  of his religion in respect of the
   obligation  to  perform  military  service,  and  the remainder of the
   application inadmissible;

   2.  Holds  by  six  votes  to  one  that there has been a violation of
   Article 14  of  the  Convention taken in conjunction with Article 9 of
   the Convention;

   3.  Holds  unanimously that there is no separate issue under Article 9
   of the Convention alone;

   4.  Holds  unanimously  that  it  is  not  necessary  to  examine  the
   complaint  under Article 14 taken in conjunction with Article 4 S:S: 2
   and 3 (b) of the Convention;

   5.  Holds unanimously

   (a)  that  the  respondent State is to pay the applicant, within three
   months from the date on which the judgment becomes final in accordance
   with Article 44 S: 2 of the Convention, EUR 12,664.36 (twelve thousand
   six  hundred  and sixty-four Euros and thirty-six cents), plus any tax
   that may be chargeable, in respect of costs and expenses;

   (b)  that  from  the  expiry of the above-mentioned three months until
   settlement  simple interest shall be payable on the above amounts at a
   rate  equal  to the marginal lending rate of the European Central Bank
   during the default period plus three percentage points;

   6.  Dismisses  unanimously  the remainder of the applicant's claim for
   just satisfaction.

   Done in English, and notified in writing on 19 March 2009, pursuant to
   Rule 77 S:S: 2 and 3 of the Rules of Court.

   Sren Nielsen Christos Rozakis
   Registrar President

   In  accordance with Article 45 S: 2 of the Convention and Rule 74 S: 2
   of  the Rules of Court, the following dissenting opinion is annexed to
   this judgment:

   - Dissenting opinion of Judge Vaji.

                      DISSENTING OPINION OF JUDGE VAJI

   1.  I  do  not agree with the majority that there has been a violation
   of  the applicant's right under the Convention in the present case. In
   my  opinion  the case should be distinguished from the cases Lffelmann
   v.  Austria  (no.42967/98)  and  Gtl  v.  Austria (no. 49686/99), both
   adopted  today, and it should be struck out of the list of cases under
   Article 37 S: 1 (b) of the Convention.

   2.    The applicant assumed the function of a preacher and an elder in
   the  community  of  Jehovah's  Witnesses.  He was called up to perform
   military  service,  as  the  authorities found that exemption from the
   obligation  to  perform  military  service  applied only to members of
   recognized  religious  societies  and  not  to  members  of registered
   religious  communities  such  as  the Jehovah's Witnesses. So far, the
   applicant was in the same situation as the applicants in the Lffelmann
   and  Gtl  cases,  in  which the Court unanimously found a violation of
   Article  14  in conjunction with Article 9 of the Convention. However,
   and  contrary  to the applicants in these two cases, on 26 August 2003
   Mr  Lang  requested 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  relevant  Military Authority not to call him up until
   further  notice.  Thus, he has never been required to perform any kind
   of military service (see paragraph 12 of the judgment).

   3.  In  the  meantime  the  European  Court  of Human Rights adopted a
   judgment  in  the case of Religionsgemeinschaft der Zeugen Jehovas and
   Others  v.  Austria  (no. 40825/98, 31 July 2008), in which it found a
   breach  of  Article  14  of  the  Convention taken in conjunction with
   Article  9 because of the impossibility for the Jehovah's Witnesses in
   Austria  to  obtain the (privileged) status of a religious society and
   register as such (see paragraph 30 of the judgment). Since this status
   question is the key element in the cases concerning the performance of
   military  service by applicants who assumed religious functions within
   the  Jehovah's  Witnesses,  comparable  to functions within recognized
   religious  societies,  the  Court followed the approach adopted in the
   above-mentioned case to find further breaches of the same Articles, on
   the  basis  of the same reasoning, in the above-mentioned cases of Gtl
   v.  Austria  and  Lffelmann  v.  Austria,  where  the  applicants were
   obliged to perform their (civilian) military service.

   4.  In  cases  in  which  a  matter  has been resolved at the domestic
   level,  it is the Court's established case-law to accept that there is
   no  need  to  continue  the  examination  of  such  applications  (for
   instance, where an applicant obtains permission to remain in a country
   instead  of  being expulsed, cf. Barakat Saleh v. the Netherlands, no.
   15243/04, 3 June 2008; Yuusuf Nuur v. the Netherlands, no. 1734/04, 31
   January  2008; and Sisojeva v. Latvia, [GC], 60654/00, 5 January 2001,
   S:S:  102-104).  In my opinion, the same approach should be applied in
   cases  where a matter has been resolved by the European Court of Human
   Rights,  as  in  the  present  case.  It  is  clear  that the Austrian
   authorities,  which since 2003 have stayed the order for the applicant
   to  perform  his  military service, will not call him up following the
   Court's  adoption  of  judgments in the cases of Religionsgemeinschaft
   der  Zeugen  Jehovas  and  Others  v.  Austria,  Gtl  v.  Austria  and
   Lffelmann  v.  Austria,  in  which it has decided both the question of
   principle  underlying the problem at issue and also the issue relating
   to  the performance of military service for persons assuming religious
   functions, such as obtained in the present case.

   5.  Consequently,  and  in the light of all the relevant circumstances
   of   the   case,  I  consider  that  the  fact  that  the  applicant's
   conscription  was  postponed  in  2003  pending  the  outcome  of  the
   Strasbourg proceedings (see paragraph 12 of the judgment) and the fact
   that  the  Court  has  in  the  meantime  adopted  the above-mentioned
   judgments,  in  which  it  found  a  breach  of  Convention  rights in
   analogous cases, are adequate and sufficient to remedy the applicant's
   complaint.  The  matter giving rise to his complaint can therefore now
   be  considered  to be "resolved" within the meaning of Article 37 S: 1
   (b).  No  particular  reason  relating  to respect for human rights as
   defined   in  the  Convention  requires  the  Court  to  continue  its
   examination of the application under Article 37 S: 1 in fine.

   6.  Thus,  in  my  opinion the application should be struck out of the
   Court's list of cases.

   13 LANG v. AUSTRIA JUDGMENT

   LANG v. AUSTRIA JUDGMENT 13

   14 LANG v. AUSTRIA JUDGMENT - SEPARATE OPINION

   LANG v. AUSTRIA JUDGMENT - SEPARATE OPINION 13


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