Two times is not enough - German total objector to be sentenced a third time?

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On Tuesday, 9 February 2010, German total objector Fabian Schulz had to face trial a third time for his refusal to do substitute service.

Fabian Schulz is recognised as conscientious objector. As a consequence, he was called up to do substitute service in October 2006. However, his service institution demanded from him to change his residence and to stay in accommodation provided by it, even after work hours. For Fabian Schulz, this triggered more serious research into the institution of substitute service in Germany, and subsequently his total objection. He declared: "Substitute service is a necessary part of the war machine, and therefore I am forced to also refuse substitute service, if I want to take my conscientious objection seriously."

Since his total objection, Fabian Schulz has been persecuted by the authorities. In March 2007 a court in Eckernförde sentenced him to a fine of 90 daily rates (~1,000 Euro). Fabian Schulz decided not to appeal. Although Fabian Schulz did a voluntary social year, the court accused him of "shirk service irresponsibly". The Federal Agency for Substitute Service (BAZ) called him again for substitute service, which he refused. Although a second trial for the same offense is prohibited by the German constitution, the court in Eckernförde this time sentenced him to five months suspended sentence plus 100 hours of social work on charges of "desertion from service" (article 53 Alternative Civilian Service Act).

Fabian Schulz appealed against the sentence, but the appeal court in Kiel turned down his appeal in September 2008.

Even before he received the written judgment of the appeal court, the Federal Agency for Substitute Service sent him a new call up for substitute service. Although Fabian Schulz explained his total objection in a long letter to the Federal Agency, he was still required to turn up for substitute service. However, he again refused to do so. In October 2009 the court in Lübeck charged him again - for the third time - with "desertion from service" (article 53 Alternative Civilian Service Act).

The trial was supposed to take place on 9 February 2010. However, after 90 minutes, in which Fabian Schulz read his declaration, and after a brief consultation among Fabian's lawyer, the judge and the prosecutor, the trial was adjourned. The judge gave as a reason that he himself and the prosecutor were not familiar with the legal case law of such a case...

Fabian Schulz' repeated punishment is not only a violation of Article 103 of the German constitution, it also violates article 14 of the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee clarified in its General Comment No 32 from 23 August 2007:

"Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience."

War Resisters' International is concerned about the grave violation of the German constitution and international legal standards in the case of total objector Fabian Schulz, and will follow the case closely.

Andreas Speck
War Resisters' International

Sources: Emails on [tkdv]-e-list, Kampagne gegen Wehrpflicht, Zwangsdienste & Militär: Mehrfachbestrafungsverfahren gegen Fabian aus Lübeck, accessed 1 March 2010