Decision on merits; Substantive issues: discrimination on other grounds freedom of thought, conscience or religion military or national service objective and reasonable justification; Articles: 8 (3) (c) 18 (1) 26; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
L. sommunication No, 295/1988. Asapo Je&rvinen vy, Finland (views
adopted on 25 July 1990, at the thirty-ninth session)
Submitted by: Aapo Jaérvinen (represented by counsel)
Alleged victim: The author
State party concerned: Finland
Date of communication: 16 March 1988 (date of initial letter)
Date of decision on admissibility: 23 March 1989
, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 25 July 1990,
Having concluded its consideration of communication No. 295/1988 submitted to
the Committee by Mr. Aapo J&rvinen under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the
author of the communication and by the State party,
Adopts the following:
Views under article §. paragraph 4. of the Optional Protocol*
1. The author of the communication, dated 16 March 19868, is Aapo Jarvinen, a
Finnish citisen born in February 1965, who claims to be the victim of a violation
of article 26 of the International Covenant on Civil and Political Rights by
Finland. He is represented by counsel.
ahe_background
2.1 In Finland, until the end of 1986, applications for exemption from military
aervice were dealt with under the Act on Unarmed and Civilian Service. Under this
legislation, conscripts whose religious or ethical convictions did not allow them
to perform their compulsory military service as armed service in accordance with
the Conscriptioa Act could be exempted from such service in times of peace and be
assigned to unarmed or to civilian service. The duration of military service is
eight months. The duration of unarmed service was 11 months, to be performed in
the Defence Forces in duties not involving the carrying of arms. Civilian service
lasted 12 months, to be performed in government civilian service, in the
municipalities or in hospitals.
a Individual opinions submitted (a) by Mesers. Francisco Aguilar Urbina and
Fausto Pocar and (b) by Mr. Bertil Wennergren, respectively, are appended.
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2.2 Under the law in force until the end of 1986, a written application as well as
the genuineness of an applicant's religious or ethical convictions were examined by
@ particular examination board. At the end of 1986 this procedure was abolished by
Act No. 647/85, the Act on the Temporary Amendment to the Act on Unarmed and
Civilian Service and applicants are now assigned to civilian service solely on the
basis of their own declarations. The duration of civilian service was set at
16 months. The ratio Jegis for the amendment reads as follows:
"As the convictions of conscripts applying for civilian service will no longer
be examined, the existence of these convictions should be ascertained in a
different manner so as not to let the new procedure encourage conscripts tu
seek an exemption from armed service purely for reasons of personal benefit or
convenience. Accordingly, an adequate prolongation of the term of such
service has been deemed the most appropriate indicator of a conscript's
convictions".
2.3 On 9 June 1986, the author, who had been called upon to report for military
service, submitted a written statement to the competent authorities stating that
his ethical convictions did not permit him to parform armed or unarmed service in
the Finnish Defence Forces. The headquarters of the military district of Tampere
transmitted the author's statement to the Investigation Board on 8 December 1986.
The Board failed to take a decision before the expiration of its mandate on
31 December 1986, and the documents were returned to the headquarters, from where
the matter was referred to the Commander of the military district for consideration
under the implementation order of Act No. 647/85.
2.4 In January 1987, che author submitted a new application for exemption fron
military service; this was accepted in February 1987. On 9 June 1987, the author
started alternative civilian service. Under the new provisions referred to above,
the term of civilian service is determined in accordance with the provisions in
force at the time of the service order. Accordingly, Mr. Jarvinen's term of
service was 16 months, because he did not receive the order assigning him to
alternative civilian service until the amendment became effective. In reply to a
complaint of discrimination filed by the author, the Parliamentary Ombudsman of
Finland, on 17 February 1988, concluded that there had been no evidence of any
intention on the part of the authorities deliberately to prolong the procedure in
Mr. J&rvinen's case; had his case been considered in the course of 1986, his
ethical convictions would have had to have been considered, with the possibility of
failing to persuade the authorities of their genuineness.
2.5 Certain categories of individuals are exempt from military or alternative
service in Finland. An Act on the Exemption of Jehovah's Witnesses from Military
Service has been in force since the beginning of 1987. Under this Act, the s6.vice
of a conscript who adheres to the religious community of Jehovah': Witnesses may be
deferred until his twenty-eighth birthday; after that he may be exempted from
military service in times of peace. This means that, in practice, vchovah’s
Witnesses do not have to perform any type of military or alternative service.
The author's allegations
3.1 The author considers that he has been the victim of discrimination, since
individuals who choose alternative service are required to serve for 16 months,
whereas the term of military service is only eight months. While he concedes that
the previous term of 12 months for alternative service was not necessarily
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discriminatory within the meaning of article 26 of the Covenant, he argues
that a prolongation from 12 to 16 months is not justified and constitv<es
discrimination. A period of 16 months is disproportionately longer than that
applicable to military conscripts, being twice as long. In the author's
opinion, the Finnish Government has failed to adduce vaiid arguments to
establish the proposition that increasing the period of alternative service to
16 monthe is a reasonable, non-discrimanatury measure, proportionate to the
stated objectives moreover, the determination of the new term of alternative
service was not based on any empirical research but was selected arbitrarily.
To the author, the stated ratio legia of the legislative amendment, Act
No. 647/85, is indicative of the Government's intention to introduce some
punitive element in the prolongation of alternative service.
3.2 It ie pointed out that the earlier term of alternative civilian service,
12 months, was in fact based on an argument of proportionality. The author
refers in this context to government bill No. 136 on unarmed and civilian
service, which had been presented to Parliament in 1967. Under the initial
proposal, civilian service would have lasted six months longer than military
service, i.e., a total of 14 months. The parliamentary Defence Matters
Committee shortened the term of civilian service to 12 months, considering
that the proposed term for alternative service was “unreasonably long", and
that it was inappropriate to treat conscripts who had opted for unarmed or
civilian service in a considerably more disadvantageous way than others.
Accordingly, the Comnittee proposed to set the duration for unarmed service at
11 months and for civilian service at 12 months.
3.3 The author adds that if one were to compare the situation of
conscientious objectors in Finland with that of conscientious objectors in
other Western European countries, it would be apparent that a term of civilian
service twice as long as that of armed military service is disproportionate to
the aim of the measure, as in all those countries except one, civilian service
usually lasts as long or only somewhat longer (up to 50 per cent longer) than
military service. This is true not only of Western Europe but also of Poland
and Hungary, which recently passed legislation governing civilian service.
3.4 In respect of the State party's argument that the simple abolition of the
examination procedure for conscientious objectors might encourage conscripts
to seek exemption from armed service on grounds of personal benefit and
convenience, the author submits that the criteria for any differentiation in
the term(s) of service are neither reasonable nor objective, as the
prolongation of the term of service is applied to all groups of conscientious
objectors except for one specific group, Jehovah's Witnesses, who are exempt
from all forms of service. Under the current eystem, serious religious or
ethical objectors are punished by an excessive prolongation of their service,
while some seeking personal benefit or convenience opt for the shortest
possible term of armed service, eight months. In the author's opinion, such
criteria of differentiation cannot be considered reasonable and objective, as
the entire burden is placed on those objectors whose genuineness of
convictions has never been at issue. fFru.ther, for auch objectors the matter
is uot one of choice but is inherent in their philosophy.
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Zhe State party's comments and observations
4.1 Referring to the Committee's decision in communication No. 185/1984, a/ the
State party argues that inasmuch as States parties do not have any vbligation to
provide for alternative service, they may, whenever they do provide for such
alternative service, determine its conditions as they see fit, provided that these
conditions do not per se constitute a violation of the Covenant.
4.2 Invoking the ratio jegis of Act No. 647/85, the State party contends that the
duration of civilian service, although admittedly longer than that of armed
conscripts, does not indicate any intention of, or actual, discrimination yvigs-a-vig
civilian servicemen within the meaning of article 26 of the Covenant. Inasmuch as
the specific circumstances of the author's case and the examination of his
application uf June 1986 are concerned, the State party considers that on the basis
of the facts, and in the light of the opinion of the Parliamentary Ombudsman of
17 February 1988, the determination of his term of civilian service took place in
accordance with Finnish law and with article 26 of the Covenant.
4.3 In respect of the general exemption of Jehovah's Witnesses from any form of
service, the State party points out that the Act on the Exemption of Jehovah's
Witnesses from Military Service was passed in accordance with section 67 of the
Perliament Act, which lays down the procedural requirements for the enactment of
constitutional legislation, and affirms that the Act cannot be regarded as
discriminatory within the meaning of article 26 of the Covenant.
Jagues_ and proceedings before the Committee
5.1 On the basis of the information before it, the Committee concluded that all
conditions for declaring the communication admissible had been met, and that, in
particular, it was agreed between the parties thet available domestic remedies had
been exhausted, pursuant to article 5, paragraph 2 (b), of the Optional Protocol.
6.2 On 23 March 1989, the Human Rights Committee declared the ca.munication
admissible.
6.1 Article 8 of the Covenant makes clear that ‘service of military character" or
“national service required by law of conscientious objectors" is not to be regarded
as forced or compulsory labour. The Committee notes that the new arrangements,
whereby applicants are now assigned to civilian service solely on the basis of
their own declarations, effectively allows a choice as to service and departs from
the previous pattern of an alternative civilian service for proven conscientious
objectors. Accordingly, any issue of alleged discrimination Zalle under article 26
rather than under article 2, paragraph 1, in relation to article 8.
6.2 Thus, the inain issue before the Committee is whether the specific conditions
under which alternative service must be porfermed by the author constitute a
violation of article 26 of the Covenant. That the Covenant itself does not provide
a right to conscientious objection does not change tis finding. Indeed, the
prohibition of discrimination under article 26 is not limited to those rights which
are provided for in the Covenant.
6.3 Article 26 of the Covenant, while prohibiting discrimination and guaranteeing
equal protection of the law to everyone, does not prohibit all differences of
treatment. Any differentiation, as the Committee has had the opportunity to state
repeatedly, ist however, be based on reasonable and objective criteria. b/
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6.4 In determining whether the prolongation of the term for alternative service
from twelve to sixteen months by Act No. 647/85, which was applied to Mr. J&rvinen,
was dased on reasonable and objective criteria, the Committee has considered in
particular the ratio legia of the Act (see para. 2.2 above) and has found that the
new arrangements were designed to facilitate the administration of alternative
service. The legislation was based on practical considerations and had no
discriminatory purpose.
6.5 The Committee is, however, aware that the impact of the legislative
differentiation, works to the detriment of genuine conscientious objectors, whose
philosophy will necessarily require thea to accept civilian service. At the same
time, the new arrangements were not merely for the convenience of the State alone.
They removed from conscientious objectors the often difficult task of convincing
the examination board of the genuineness of their beliefs; and they allowed a
broader range of individuals potentially to opt for the possibility of alternative
service.
6.6 In all the circumstances, the extended length of alternative service is
neither unreasonable nor punitive.
6.7 Although the author has made certain references to the exemption of Jehovah's
Witnesses from alternative or military service in Finland, their situation is not
at issue in the present communication.
7. ‘The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political Rights, is
of the view that the terms of alternative service imposed on Mr. Jarvinen by Act
No. 647/85 do not disclose a violation of article 26 of the Covenant.
[Done in English, French, Russian and Spanish, the English text being the original
version. ]
Notes
a/ See communication No. 185/1984 (L, 7. K. v. Finland), inadmissibility
decision adopted on 9 July 1985; in this decision, the Committee held that the
Covenant "does not provide for the right to conscientious objection", para. 5.23
Selected Decisions of the Human Rights Committee, volume 2, p. 62 of the English
version.
b/ See communication No. 196/1985 (Gueye et al. v. France), final views
adopted on 3 April 1989, para. 9.4; Official Pecords of tne General Assembly,
Forty-fourth Session. Supplement No. 40 (A/44/40, annex X, sect. B).
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We share the view expressed by the majority of the Committee that the present
case is to be considered under article 26 of the Covenant, as well as the view that
the same article doee not prohibit all differences of treatment, provided that a
differentiation be based on reasonable and objective criteria. However, we do not
share the view that reasonable and objective criteria exiet in the present case.
A consideration of the ratio legis of the Finnish Act 647/895 discloses that
the difference of duration between military and civilian service is not based on
objective criteria, such as a more severe type of service or the need for a special
training required in order to accomplish the longer service. The ratio of the law
is rather to replace the earlier method of testing the sincerity of an applicant's
conscientious objection with a procedure based on administrative convenience,
whereby the longer duration of the civilian service results in a sanction against
consicentious objectors. Such longer duration constitutes in our view a difference
of treatment incompatible with the prohibition of discrimination on grounds of
opinion enshrined in article 26 of the Covenant.
Francisco AGUILAR URBINA
Fausto POCAR
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APPENDIX II
Article 6 of the International Covenant on Economic, Social and Cultural
Rights recognizes the right of everyone to gain his living by work which he freely
chooses or accepts. The objective of article 8 of the Covenant on Civil and
Political Rights is the protection against being forced to carry out work which one
has not freely chosen. However, exception is made for any service of military
character and, in conjunction herewith, for any national service required by law of
conscientious objectors. As the national service in question is meant to replace
military service, the question of equality before the law arises, as explained in
paragrapher £.1 to 6.3 of the Committee's views. I concur in the opinions expressed
in these paragraphs. When considering the question of equality before the law, the
natural starting-point for me is everyone's right freely to choose his work and the
time to devote to it and the fact that the object of national service is a
replacement of military service.
The ratio Jegia of Act No. 647/85 (see para. 2.2 of the views) was that by
choosing to prolong service time by as much as 240 days, the effect would be to
discourage applicants without sincere and truly genuine convictions. Looked upon
exclusively from the point of view of deterrence of objectors without genuine
convictions, this method may seem both objective and reasonable. However, from the
point of view of those for whom national service had been established in place of
military service, the method is inadequate and runs counter to its purpose. As the
Committee observes in paragraph 6.5, the impact of the legislative differentiation
works to the detriment of genuine conscientious objectors, whose philosophy will
necessarily require them to accept civilian service, no matter how iong it is in
comparison to military service. From this finding I draw the conclusion, contrary
to the Committee, that the method not only is inadequate in relation to its very
purpose to provide a possibility to those who, for reasons of conscience, are
unable to perform military service, to instead perform civilian service. The
effect of this practice is that. they will be compelled to sacrifice twice as much
of their libe:ty in comparison to those who are able to perform military service on
the basis of their belief.
In my view, this is unjust and runs counter to the requirement of equality
before the law laid down in article 26 of the Covenant. The differentiation in
question is, in my view, based on grounds that are neither objective no->
reasonable. Nor does it in my opinion comply with the provisions of article 18,
paragraph 2, which state that no one shall be subject to coercion which would
impair his freedom to have or adopt a religion or belief of his choice. Obliging
conscientious objectors to perform 240 extra days of national service on account of
their beliefs is to impair their freedom of religion or to hold beliefs of their
choice.
I am thersore of the view that the terms for performance of national service,
in place of military service, imposed on Mr. Jarvinen by Act No. 647/85 disclose
violations of articles 18 and 26 in conjunction with article 8 of the Covenant.
Bertil «ENNERGREN
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