said to constitute strong evidence that the objections
to military and substitute service are based on
genuine religious convictions. The Committee notes
that there is no legal possibility for other
conscientious objectors to be exempted from the
service altogether; they are required to do substitute
service; when they refuse to do this for reasons of
conscience, they are prosecuted and, if convicted,
sentenced to imprisonment.
8.
In his comments, dated 25 January 1993, on
the State party's submission, the author argues that,
while the State party accepts membership of
Jehovah's Witnesses as sufficient evidence that their
objection to military and substitute service is sincere,
it does not recognize the unsurmountable objections
of other persons which are based on equally strong
and genuine convictions. The author argues that the
State party, by exempting Jehovah's Witnesses from
military and substitute service, protects them against
punishment by their own organization, while it sends
other total objectors to prison. He further argues that
the preparedness of total objectors to go to prison
constitutes sufficient evidence of the sincerity of
their objections and contends that the differentiation
in treatment between Jehovah's Witnesses and other
conscientious objectors amounts to discrimination
under article 26 of the Covenant.
9.3 The Committee considers that the exemption
of only one group of conscientious objectors and the
inapplicability of exemption for all others cannot be
considered reasonable. In this context, the
Committee refers to its General Comment on article
18 and emphasizes that, when a right of
conscientious objection to military service is
recognized by a State party, no differentiation shall
be made among conscientious objectors on the basis
of the nature of their particular beliefs. However, in
the instant case, the Committee considers that the
author has not shown that his convictions as a
pacifist are incompatible with the system of
substitute service in the Netherlands or that the
privileged treatment accorded to Jehovah's
Witnesses adversely affected his rights as a
conscientious objector against military service. The
Committee therefore finds that Mr. Brinkhof is not a
victim of a violation of article 26 of the Covenant.
Examination of merits
9.1 The Human Rights Committee has considered
the present communication in the light of all the
information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional
Protocol.
9.2 The issue before the Committee is whether
the differentiation in treatment as regards exemption
from military service between Jehovah's Witnesses
and other conscientious objectors amounts to
prohibited discrimination under article 26 of the
Covenant. The Committee has noted the State party's
argument that the differentiation is based on
reasonable and objective criteria, since Jehovah's
Witnesses form a closely-knit social group with
strict rules of behaviour, membership of which is
9.4 The Committee, however, is of the opinion that
the State party should give equal treatment to all
persons holding equally strong objections to military
and substitute service, and it recommends that the
State party review its relevant regulations and practice
with a view to removing any discrimination in this
respect.
Communication No. 412/1990
Submitted by: Auli Kivenmaa on 7 March 1990 (represented by counsel)
Alleged victim: The author
State party: Finland
Declared admissible: 20 March 1992 (forty-fourth session)
Date of adoption of Views: 31 March 1994 (fiftieth session)*
Subject matter: Prosecution of individual for
organizing public assembly without prior
notification to authorities
Articles of the Covenant: 15, 19 and 21
Procedural issues: State party’s failure to make submission on admissibility – Ineffective
remedies
1.
The author of the communication is Ms. Auli
Kivenmaa, a Finnish citizen and Secretary-General
of the Social Democratic Youth Organization. She
claims to be a victim of a violation by Finland of
articles 15 and 19, and alternatively of article 21, of
the International Covenant on Civil and Political
Rights. She is represented by counsel.
Articles of the Optional Protocol: 4 (2) and 5 (2) (b)
Substantive issues: Freedom of expression – Right to
freedom of assembly – Retroactive
application of criminal law
55
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