(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a Chartered Accountant under rules which excluded those convicted of serious crimes. He argued that the lack of an appropriate exception for those whose conviction was due to religious considerations constituted unlawful discrimination under article 14 taken with article 9 of the Convention. The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. The court observed, at para 47, that it was legitimate to exclude some felons from entitlement to become chartered accountants but that there was no objective and reasonable justification for having treated the applicant in that way.
Held: For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols. Article 14 applies to indirect discrimination resulting from a failure to accord different treatment to cases which ought to be treated differently.
‘The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification . . However, the Court considers that this is not the only facet of the prohibition of discrimination. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’
A dissenting minority of 6 reasoned: ‘1. While we agree that there has been a violation in this case, in our view the matter falls to be examined primarily under Article 9 taken by itself. 2. We note that the applicant refused to serve in the armed forces because of his religious beliefs. The Commission has in the past held that in the case of persons who refuse to perform military service on religious grounds, Article 9 must be read in conjunction with Article 4 para. 3 (b) of the Convention . . This was considered to show that the Convention does not give conscientious objectors the right to exemption from military service, but leaves each Contracting State to decide whether or not to grant such a right. As a result, a sentence passed for refusal to perform military service was not considered to constitute in itself a breach of Article 9 of the Convention. 3. The jurisprudence of the Convention has, however, evolved in the interim to such an extent as to cast doubt on this reasoning. . 4. In these circumstances, we consider that the freedom to ‘manifest . . in observance’ the well-known religious conviction of Jehovah’s Witnesses by refraining from personal military service is a freedom which attracts the guarantees of Article 9 para. 1, subject to the provisions of Article 9 para. 2 . . 5. It follows that the refusal to appoint the applicant as a Chartered Accountant on the sole ground of his having been convicted for refusing to enlist in the army constituted an interference with his freedom to manifest his religion . . 6 An interference with the exercise of an Article 9 right will not be compatible with paragraph 2 unless it was ‘prescribed by law’, had an aim or aims that is or are legitimate under that paragraph and was ‘necessary in a democratic society’ for the aforesaid aims.’ It may itself be a breach of article 14 not to recognise the difference in treatment of the claimant.
Judges:
Wildhaber P
Citations:
34369/97, (2001) 31 EHRR 411, [2000] ECHR 162, (2001) 31 EHRR 15, (2001) 31 EHRR 15, 9 BHRC 12, ECHR 2000-IV
Links:
Statutes:
European Convention on Human Rights 9 14
Jurisdiction:
Human Rights
Cited by:
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EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
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Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
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Cited – The Church of Jesus Christ of Latter-Day Saints v United Kingdom ECHR 4-Mar-2014
latterdayECHR0314
The claimant said that it had been wrongfully deprived of relief from business rates for its two temples. It asserted that it was a religion, and that the treatment was discriminatory. The government said that the refusal was on the basis alone that . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – C, Regina (on The Application of) v Secretary of State for Work and Pensions SC 1-Nov-2017
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Lists of cited by and citing cases may be incomplete.
Human Rights, Discrimination
Leading Case
Updated: 07 February 2022; Ref: scu.165856