March 2009 – Strasbourg

In a decision issued March 19, 2009, the European Court of Human Rights held that, while countries are not required to offer exemption from military service for certain members of religious groups, if it does offer such exemptions, they must apply in a way that does not discriminate between different types of religious organizations. In Lang v. Austria, the court held that an Austrian statute granting legal exemption from military service to members of a recognized religious society, but denying the exemption to members of a recognized religious communities, violated Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) which says that the principles of the Convention be applied in a non-discriminatory manner. Article 14 cannot exist independently, so the petitioner also invoked the protection of manifestations of religious belief protected under Article 9 of the Convention. In this case, the Upper Austrian Military Authority refused to grant Lang, a preacher and elder for the Jehovah’s Witnesses, the benefit of the religious exemption to military service on the grounds that the Jehovah’s Witnesses were recognized only as a religious community, not a religious society. Austria argued that since the government was not required to grant any type of religious exemption under Article 9, not granting the exemption to members of religious communities could not violate the Convention. The Court cited Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98, 31 July 2008, in which they determined that if registering as a religious society affords special treatment or additional benefits, the criteria to achieve that status must be applied in a non-discriminatory manner. Any difference in treatment must be based on a “’objective and reasonable justification.’” The court in this case concluded that the State demonstrated no objective and reasonable justification for basing the military exemption on whether the religious group was registered as a society or a community. Therefore, it held, the exemption violated Article 14 of the Convention, applied in conjunction with Article 9, but found no direct violation of Article 9.