Finland, Helsinki Court of Appeal, 23 February 2018 18/108226, R 16/738

Identification of the case

• Freedom of thought, conscience and religion (art. 10 CFREU)

• Suomen perustuslaki 11.6.1999/731 (Constitution of Finland)
• Asevelvollisuuslaki 28.12.2007/1438 (Conscription Act)
• Siviilipalveluslaki 28.12.2007/1446 (Non-Military Service Act)
• Yhdenvertaisuuslaki 1325/2014 (Non-Discrimination Act)
• Laki Jehovan todistajien vapauttamisesta asevelvollisuuden suorittamisesta eräissä tapauksissa 645/1985 (Vapautuslaki) (Law on the exemption of Jehovah’s Witnesses from military service in certain cases)

• Article 10(2) CFREU

Summary of the case

Mr. A, who had been assigned to military service, had applied for non-military service. However, due to his pacifist beliefs, he refused to do non-military service as well. Therefore, the Eastern Uusimaa District Court sentenced Mr. A to a 173-day prison sentence under Section 74 of the Non-Military Service Act.

However, The Helsinki Court of Appeal held that the conviction of Mr. A would amount to discriminatory treatment, taking into consideration the exemption of Jehovah's Witnesses from military and non-military service. The conviction thus violated the principle of equality laid down in Article 6(1) and the prohibition of discrimination under Article 6(2) of the Finnish Constitution. Therefore, the charge of refusal from non-military service was dismissed.

• Criminal judicial enforcement

Dismissal of the applicant’s charge of refusal of non-military service be dismissed.

The special status of Jehovah's Witnesses means that, unlike other Finnish men, they do not have to take part in mandatory military or non-military service in peacetime. The Jehovah's Witnesses' special status is based on their religion prohibiting all violence and use of arms. Mr. A, on the other hand, has refused civil service, citing his own pacifist beliefs. If a non-Jehovah individual refuses to serve in the non-military service, he is sentenced by law to imprisonment of half of the non-military service term of 173 days (Section 74 of the Non-Military Service Act).

Yet, Mr. A, on the basis of the constitutional prohibition of discrimination, would be placed in a different position from Jehovah's Witnesses if he were convicted for refusing to complete non-military service.

Moreover, the Helsinki Court of Appeal held that other pacifist beliefs cannot be placed in a position which is unequal to that of Jehovah's Witnesses. The requirement of equal treatment presupposes that other beliefs are treated equally and that the difference in treatment cannot be regarded as acceptable, even if the exemption law is laid down. The application of the penalty provision in Section 74 of the Non-Military Service Act would manifestly conflict with the principle of equal treatment and non-discrimination as enshrined in Article 6 of the Constitution, read in conjunction with international human rights obligations binding on Finland. Lastly, the law exempting Jehovah’s witnesses from military and non-military service is in conflict with the Finnish Constitution.

Conclusion: Mr. A's refusal from military/non-military service stemmed from his pacifist beliefs, and prevented him from performing military service or substitute non-military service. The conviction expressed by Mr. A and the seriousness of his pacifist beliefs showed that there was no justification for placing his beliefs in an unequal position in comparison to Jehovah's Witnesses.

Convicting Mr. A of refusing to serve in the non-military service would result in a breach of the principle of equality laid down in Article 6 (1) of the Constitution and the prohibition of discrimination referred to in Article 6 (2), where there is no objective and acceptable reason for the difference in treatment.

Only Article 10(2) of the CFREU was referred to (conscientious objection). Article 21 of CFREU was not applied or discussed, despite the focus on non-discrimination in the case.

Role of the Charter and role of the general principles on enforcement

Finnish Constitution:

‘Section 6 - Equality

Everyone is equal before the law.

None shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.

Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.

Equality of the sexes is promoted in societal activity and working life, especially in the determination of pay and the other terms of employment, as provided in more detail by an Act.’

‘Section 127 - National defence obligation

Every Finnish citizen is obligated to participate or assist in national defence, as provided by an Act.

Provisions on the right to exemption, on grounds of conscience, from participation in military national defence are laid down by an Act.’

Act on Exemption from Conscription in Certain Cases (Liberation Act) 1987. Under Section 1 of the Exemption Act, Jehovah's Witnesses may be released from military service in peacetime. Liberation means that Jehovah's Witness is released from conscription and does not have to perform civilian service either.

Although the Helsinki Court of Appeal did not extensively discuss the CFREU, it nevertheless recognised the right to conscientious objection as enshrined in Article 10(2).

The Court did discuss the ECtHR’s interpretation of Article 14 ECHR on non-discrimination, applying it together with Article 9 ECHR. Most notably, the Court of Appeal explained in paragraph 46 that: ‘The Court of Human Rights has since held that the difference in treatment between religious which led to a special status recognized by law and, for example, exemption from military service, which did not receive other religious communities that did not have this special status was in itself in line with Article 14 of the ECHR, read in conjunction with Article 9 with. The condition, however, was that other religious communities had, if they so wished the possibility of applying for that special status and that the requirements for achieving that special status applied in a non-discriminatory manner to members of different religious communities (Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 31 July 2008, Gütl v. Austria, 12 March 2009 and Löffelmann v. Austria, March 12, 2009 and Koppi v. Austria)’.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, Application no. 27540/05, 31 July 2008
• Gütl v. Austria, Application no. 49686/99, 12 March 2009
• Löffelmann v. Austria, Application no. 42967/98, March 12, 2009
• Koppi v. Austria, Application no. 33001/03, 10 December 2009

Conform interpretation with ECHR as interpreted by the ECtHR.

To ensure conformity of national law with the ECHR.

Additional notes on the decision