In a judgment delivered at Strasbourg on 07 July 2011 in the case of Bayatyan v. Armenia (application no. 23459/03), the European Court of Human Rights held that there had been a violation of Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.

Principal facts

The applicant, Vahan Bayatyan, is an Armenian national, born in 1983. He is a Jehovah’s Witness. The case concerns his criminal conviction for refusal to perform military service for conscientious reasons. Declared fit for military service, Mr Bayatyan became eligible for the spring draft of 2001.

In letters sent to a number of officials, he declared that he refused to perform military service for conscientious reasons, but that he was prepared to do alternative civil service. The Parliamentary Commission for State and Legal Affairs subsequently informed him that since there was no law in Armenia on alternative service, he was obliged to serve in the army. In a judgment eventually upheld by the Court of Cassation in January 2003, he was convicted of draft evasion and sentenced to two-and-a-half years in prison. In July 2003, he was released on parole. Mr Bayatyan complains that his conviction violated his rights under Article 9 (freedom of thought, conscience and religion). He also submitted that the Article should be interpreted in the light of present-day conditions, namely the fact that the majority of Council of Europe Member States have recognised the right of conscientious objection and that Armenia in 2000, before becoming

a member, had committed to “pardon all conscientious objectors sentenced to prison terms”.

Decision of the Court

The application was lodged with the Court on 22 July 2003 and declared admissible on 12 December 2006.

In a judgment of 27 October 2009, the Court held that there had been no violation of Article 9. On 10 May 2010 the Chamber relinquished jurisdiction in favour of the Grand Chamber at the applicant’s request. A public hearing was held in the Human Rights building in Strasbourg (webcast available) on 24 November 2010.

The Grand Chamber considered that Mr Bayatyan’s failure to report for military service was a manifestation of his religious beliefs. His conviction for draft evasion therefore amounted to an interference with his freedom to manifest his religion. The Grand Chamber left open the question of whether his conviction was lawful. It was based on laws which were accessible and clear. However, the Armenian authorities had also undertaken to adopt a law on alternative service and, in the meantime, to pardon conscientious objectors sentenced to prison terms.

The Grand Chamber did not find it necessary to rule on the Armenian Government’s argument that there was a “legitimate aim” behind Mr Bayatyan’s conviction; the protection of public order and, implicitly, the rights of others. However, the Government’s arguments were unconvincing, especially given their pledge to introduce alternative civilian service and, implicitly, to refrain from convicting new conscientious objectors. Concerning whether his conviction was “necessary in a democratic society” the Grand Chamber noted that almost all the 47 Member States of the Council of Europe which ever or still had compulsory military service had introduced alternatives to military service. Accordingly, a State which had not done so had

to give convincing and compelling reasons to justify any interference with a person’s right to freedom of religion.

The Grand Chamber noted that Mr Bayatyan, as a Jehovah’s Witness, wanted to be exempted from military service, not for personal benefit or convenience, but, because of his genuinely-held religious convictions. Since no alternative civilian service was available in Armenia at the time, he had had no choice but to refuse to be drafted into the army to stay faithful to his convictions and, by doing so, risk criminal sanctions. Such a system failed to strike a fair balance between the interests of society as a whole and those of Mr Bayatyan.

The Grand Chamber therefore considered that the imposition of a penalty on Mr Bayatyan, in circumstances where no allowances were made for his conscience and beliefs, could not be considered a measure necessary in a democratic society. Still less could it be seen as necessary, taking into account that there existed viable and effective alternatives capable of accommodating the competing interests, as demonstrated by the experience of the overwhelming majority of European States.

The Grand Chamber admitted that any system of compulsory military service imposed a heavy burden on citizens. However, it was acceptable if shared in an equitable manner 5 and if exemptions from that duty were based on solid and convincing grounds, as in Mr Bayatyan’s case. The Grand Chamber reiterated that pluralism, tolerance and broadmindedness were hallmarks of a democratic society. Democracy did not simply mean that the views of the majority had always to prevail; a balance had to be achieved which ensured the fair and proper treatment of minorities and avoided any abuse of a dominant position. Respect on the part of the State towards the beliefs of a minority religious group (like the Jehovah’s Witnesses) by providing them with the opportunity to serve society as dictated by their conscience might, far from creating unjust inequalities or discrimination as the Government claimed, ensure cohesive

and stable pluralism and promote religious harmony and tolerance in society. Mr Bayatyan’s prosecution and conviction also happened at a time when the Armenian authorities had already officially pledged to introduce alternative service. Their commitment not to convict conscientious objectors during that period was also implicit in their undertaking to pardon all conscientious objectors sentenced to imprisonment. Hence, Mr Bayatyan’s conviction for conscientious objection was in direct conflict with the official policy of reform and the legislative changes then being implemented in Armenia in line with its international commitment

and could not be said to have been prompted by a pressing social need. In addition, the law on alternative service was adopted less than a year after Mr Bayatyan’s final conviction. The fact that he was later released on parole did not affect the situation. Nor did the adoption of the new law have any impact on his case.

The Court therefore considered that Mr Bayatyan’s conviction constituted an interference with his right to freedom of religion which was not necessary in a democratic society, in violation of Article 9.

Source: ECHR press Release

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