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CourEDH
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
§ 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 Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
judges,
and Søren 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 § 3).
THE
FACTS
I. THE
CIRCUMSTANCES OF THE CASE
5. The
applicant was born in 1969 and lives in Altmünster.
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 (Ältester)
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 (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.
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
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.
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 § 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 Löffelmann
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 § 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 § 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, § 33,
Reports of
Judgments and Decisions 1997-I, and Camp
and Bourimi v. the Netherlands, no. 28369/95, § 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
Şahin v. Turkey [GC], no. 44774/98, §§ 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, § 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, § 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., § 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., § 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 § 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
§§ 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 § 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,
§ 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 § 3 of the Convention and must be rejected in accordance
with Article 35 § 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 Löffelmann
v. Austria (cited above) and Gütl
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
§§ 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 §§ 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 § 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
§§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following dissenting opinion is annexed to this
judgment:
-
Dissenting opinion of Judge Vajić.
DISSENTING
OPINION OF JUDGE VAJIĆ
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 Löffelmann
v. Austria (no.42967/98) and Gütl
v. Austria (no. 49686/99), both adopted today, and it should be
struck out of the list of cases under Article 37 § 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 Löffelmann
and Gütl
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 Gütl
v. Austria and Löffelmann
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,
§§ 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, Gütl
v. Austria and Löffelmann
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 § 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 § 1 in
fine.
6. Thus,
in my opinion the application should be struck out of the Court's list
of cases.
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