Information Note on the Court’s case-law 211

October 2017

Adyan and Others v. Armenia - 75604/11

Judgment 12.10.2017 [Section I]

Article 9

Article 9-1

Freedom of conscience

Freedom of religion

Manifest religion or belief

Conviction of conscientious objectors for refusing to perform military or alternative service: violation

Facts – The four applicants were Jehovah’s Witnesses and conscientious objectors. In July 2011 they were convicted of evading conscription to military and alternative service and sentenced to two and a half years’ imprisonment. They had argued in their defence that the alternative service provided for under domestic law was not of a genuinely c ivilian nature, as it was supervised by the military authorities, and was punitive in nature as it lasted 42 months compared to 24 months for military service.

In the Convention proceedings, the applicants complained of a violation of their rights guarante ed by Article 9 (freedom of thought, conscience and religion).

Law – Article 9: The applicants’ refusal to be drafted to military and alternative service was a manifestation of their religious beliefs and their conviction for draft evasion therefore amount ed to an interference with their freedom to manifest their religion.

In contrast to the position in Bayatyan v. Armenia [GC] the applicants in the present case had had the opportunity to refuse compulsory military service for reasons of conscience and to perform instead “alternative labour service” pursuant to sections 2 and 3 of the Alternative Service Act, since such ser vice had been introduced in Armenia since 2004 and was performed outside the armed forces of Armenia. However, that fact alone did not suffice to conclude that the authorities had discharged their obligations under Article 9 of the Convention. The Court al so had to verify that the allowances made were appropriate for the exigencies of an individual’s conscience and beliefs. Although the States enjoyed a certain margin of appreciation regarding the manner in which their systems of alternative service were or ganised and implemented, the right to conscientious objection guaranteed by Article 9 would be illusory if a State were allowed to organise and implement its system of alternative service in a way that would fail to offer – whether in law or in practice – an alternative to military service of a genuinely civilian nature and one which was not deterrent or punitive in character.

(a) Whether the service was of a genuinely civilian nature – The Court considered that the alternative labour service available to the applicants at the material time was not of a genuinely civilian nature. Although it was undisputed that it was of a civilian nature (the servicemen were assigned as orderlies to various civilian institutions, such as orphanages and retirement homes), other factors – such as authority, control, applicable rules and appearances – had to be taken into account when deciding whether alternative service was of a genuinely civilian nature. In the applicants’ case, the Court noted that military authorities wer e actively involved in the supervision of their service and had the power to influence their service by ordering their transfer to another institution or place of service; certain aspects of the alternative labour service were organised in accordance with military regulations; the alternative service was not sufficiently separated hierarchically and institutionally from the military system at the material time; and, lastly, as regards appearances, alternative civilian servicemen were required to wear a unif orm and to stay at their place of service.

(b) Could the alternative labour service be perceived as being deterrent or punitive in character? –The alternative labour service would have lasted 42 months compared to 24 months for armed military service. It s length was thus significantly longer than the maximum period of one and a half times the length of armed military service laid down by the European Committee of Social Rights.* Such a significant difference in duration of service must have had a deterren t effect and could be said to contain a punitive element.

***

In sum, the authorities had failed, at the material time, to make appropriate allowances for the exigencies of the applicants’ conscience and beliefs and to guarantee a system of alternative service that struck a fair balance between the interests of socie ty as a whole and those of the applicants.

Conclusion : violation (unanimously).

Article 41: EUR 12,000 each in respect of non-pecuniary damage.

(See also Bayatyan v. Armenia [GC], 23459/03, 7 July 2011, Information Note 143 )

* Conclusions XIX-1 of 24 October 2008 regarding compliance by Greece with Article 1 § 2 of the European Social Charter (The right to work: effective protection of the right of the worker to earn his living in an occupation freel y entered upon).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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