CASE OF BAYATYAN v. ARMENIA
(Application no. 23459/03)
27 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bayatyan v. Armenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 6 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
“I, Vahan Bayatyan, born in 1983, inform you that I have studied the Bible since 1996 and have trained my conscience by the Bible in harmony with the words of Isaiah 2:4, and consciously refuse to perform military service. At the same time I inform you that I am ready to perform alternative civilian service in place of military service.”
“In connection with your declaration, ... we inform you that in accordance with the legislation of the Republic of Armenia every citizen ... is obliged to serve in the Armenian army. Since no law has yet been adopted in Armenia on alternative service, you must submit to current law and serve in the Armenian army.”
B. Criminal proceedings against the applicant
“... since, having undertaken investigative and operative search measures, the attempts to find the wanted [applicant] within two months ... have been unsuccessful and his whereabouts are unknown, ... [it is necessary] to suspend the investigation ... and ... to activate operative search measures to find the accused.”
C. The applicant's arrest and trial
“The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as one of Jehovah's Witnesses his faith did not permit him to serve in the armed forces of Armenia.
[The applicant] is physically fit and is not employed.
I believe that the court issued an obviously mild punishment and did not take into consideration the degree of social danger of the crime, the personality of [the applicant], and the clearly unfounded and dangerous reasons for [the applicant's] refusal of [military] service.”
“The court of first instance, when sentencing [the applicant], took into account that [the applicant] had committed not a grave crime, that he was young, he had not been guilt-stained in the past, that he had confessed his guilt, had actively assisted in the disclosure of the crime and had sincerely repented.
However, in the course of the appeal proceedings it was established that not only did [the applicant] not accept his guilt, nor did he repent of having committed the crime, not only did he not assist in the disclosure of the crime, but he hid from preliminary investigation and his whereabouts were unknown, for which reason a search for him was initiated.
Based on these circumstances, as well as taking into account the nature, motives and degree of social danger of the crime, the Court of Appeal considers that the prosecutor's appeal must be granted, and a harsher and adequate punishment must be imposed on [the applicant].”
II. RELEVANT DOMESTIC LAW
A. The Constitution of Armenia of 1995 (prior to the amendments introduced in 2005)
“Everyone has the right to freedom of thought, conscience and religion.”
“The fundamental rights and freedoms of man and citizen enshrined in Articles 23-27 of the Constitution can be restricted only by law if necessary for the protection of State security and public safety, the public order, the health and morals of society, and the rights, freedoms, honour and good name of others.”
“Every citizen is obliged to participate in the defence of the Republic of Armenia in accordance with a procedure prescribed by law.”
B. The Criminal Code of 1961 (no longer in force as of 1 August 2003) (ՀՀ քրեական օրենսգիրք` ուժը կորցրել է 01.08.03 թվականից)
Article 75: Evasion of a regular call-up to active military service
“Evasion of a regular call-up to active military service is punishable by imprisonment for a period of one to three years.”
C. The Military Liability Act of 1998
Section 11: Conscription to compulsory military service
“1. Male conscripts and officers of the first category reserve whose age is between 18 and 27 [and] who have been found physically fit for military service in peacetime shall be drafted to compulsory military service.”
Section 12: Exemption from compulsory military service
“1. [A citizen] can be exempted from compulsory military service: (a) if the republican recruiting commission recognises him to be unfit for military service on account of poor health, striking him off the military register; (b) if his father (mother) or brother (sister) perished while performing the duty of defending Armenia or in [the Armenian] armed forces and other troops, and he is the only male child in a family; (c) by a decree of the Government; (d) if he has performed compulsory military service in foreign armed forces before acquiring Armenian citizenship; or (e) he has a science degree (candidate of science or doctor of science) and is engaged in specialised, scientific or educational activities.”
Section 16: Granting deferral of conscription to compulsory military service on other grounds
“2. In individual cases the Government defines categories of citizens and particular individuals to be granted deferral from conscription to compulsory military service.”
D. The Freedom of Conscience and Religious Organisations Act of 1991
“All civic obligations envisaged by law apply equally to believing members of religious organisation as they do to other citizens.
In specific cases of contradiction between civic obligations and religious convictions, the matter of discharging one's civic obligations can be resolved by means of an alternative principle, in the procedure prescribed by law, by mutual agreement between the relevant State authority and the given religious organisation.”
E. The Alternative Service Act adopted on 17 December 2003 and entered into force on 1 July 2004 («Այլընտրանքային ծառայության մասին» ՀՀ օրենք)
Section 2: The notion and types of alternative service
“1. Alternative service, within the meaning of this Act, is the service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions.
2. Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty, and the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely] the labour service performed outside the armed forces of Armenia.
3. The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive, depreciatory and degrading nature.”
Section 3: Grounds for performing alternative service
“1. An Armenian citizen, whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, can perform alternative service.”
III. RELEVANT INTERNATIONAL DOCUMENTS
A. Opinion No. 221 (2000) of the Parliamentary Assembly of the Council of Europe (PACE): Armenia's application for membership of the Council of Europe
“13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... iv. human rights: ... d. to adopt, within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service has come into force, to perform non-armed military service or alternative civilian service.”
B. Recommendation 1518 (2001) of the PACE: Exercise of the right of conscientious objection to military service in Council of Europe member states
“2. The right of conscientious objection is a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the Universal Declaration of Human Rights and the European Convention on Human Rights.
3. Most Council of Europe member states have introduced the right of conscientious objection into their constitutions or legislation. There are only five members states where this right is not recognised.”
C. Charter of Fundamental Rights of the European Union (2000)
Article 10: Freedom of thought, conscience and religion
“1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.”
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. The parties' submissions
1. The Government
2. The applicant
B. The Court's assessment
1. Recapitulation of the relevant case-law
2. Application of the above principles to the present case
FOR THESE REASONS, THE COURT
Holds by six votes to one that there has been no violation of Article 9 of the Convention.
Done in English, and notified in writing on 27 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Judge Elisabet Fura;
(b) dissenting opinion of Judge Ann Power.
CONCURRING OPINION OF JUDGE FURA
DISSENTING OPINION OF JUDGE POWER
(i) The Convention is a 'Living Instrument'
(ii) Proportionality of Interference
2 Rees v. United Kingdom (1986) 9 EHRR § 56; see also the subsequent cases of Cossey v. United Kingdom (1990) 13 EHRR § 622; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR § 163; and Goodwin v. United Kingdom [GC], no. 28957/95, ECHR 2002 VI.
3 Tyrer, § 31.
4 Recommendation (1518) of the PACE (2001), § 44.
5 See, inter alia, Recommendation No. R (87) 8, adopted by the Committee of Ministers on 9 April 1987; Recommendation No (1518) of the PACE (2001); Report of the United Nations Office of the High Commissioner for Human Rights, 27 February 2006; and Charter of Fundamental Rights of the European Union (2000).
6 Notwithstanding the undertaking given by Armenia to adopt a law on alternative service in compliance with European standards, the Parliamentary Assembly of the Council of Europe was disappointed to note in 2007 that current law still does not offer conscientious objectors any guarantee of “genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character” as provided for by Council of Europe standards. The Assembly was “deeply concerned to note that for lack of a genuine form of civilian service, dozens of conscientious objectors, most of whom are Jehovah’s Witnesses, continue to be imprisoned, since they prefer prison to an alternative service not of a truly civilian nature”. (PACE Monitoring Committee Resolution 1532 (2007).
7 [GC], no. 34369/97, ECHR 2000 IV.
8 Application no. 32438/96, admissibility decision of 6 April 2000.
9 Ülke v. Turkey, no. 39437/98, 24 January 2006, at § 61 and 62.
10 Groppera Radio AG and Others v. Switzerland, 28 March 1990, Series A no. 173; Markt Intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, Series A no. 165; and Kokkinakis v. Greece, 25 May 1993, § 47, Series A no. 260 A.
11 Groppera Radio AG and Others v. Switzerland, § 72; see also Barfod v. Denmark, 22 February 1989, Series A no 149.
12 Kokkinakis v Greece, 25 May 1993, § 47, Series A no. 260 A.
13 See Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, §125, ECHR 2001 XII where the Court held that the mere assertion of a danger to national security did not absolve the state from indicating the justification for advancing such a claim.