Communicated on 18 May 2020 Published on 8 June 2020

SECOND SECTION

Application no. 51914/19 Stanislav TELIATNIKOV against Lithuania lodged on 1 October 2019

STATEMENT OF FACTS

The applicant, Mr Stanislav Teliatnikov , is a Lithuanian national, who was born in 1994 and lives in Izmir/ Konak , Turkey. He is represented before the Court by Mr S.H. Brady, a lawyer practising in London.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a member of the Jehovah ’ s Witnesses, a religious group whose beliefs include the conviction that service, even unarmed, within the military is to be opposed (see Bayatyan v. Armenia [GC], no. 23459/03, § 111, ECHR 2011 ). He was also appointed to the ecclesiastical position of ministerial servant (deacon) and has the status of a minister.

In the spring of 2015 the applicant was called up for “initial mandatory military service” ( privalomoji pradinė karo tarnyba ) under the Law on National Conscription (see the Relevant domestic law part below). At that time, Article 3 § 7 of that Law, read together with Article 5 of the Law on Religious Communities and Associations, exempted religious ministers from military service, but only if they were members of one of Lithuania ’ s nine “traditional” religions, which Jehovah ’ s Witnesses is not (see also the Constitutional Court ’ s ruling cited below) .

On 15 June 2015 the applicant submitted a request to the Lithuanian Army ’ s Darius and Gir ė nas Region 2 nd Unit ( Dariaus ir Gir ė no apygardos 2-oji rinktin ė , hereinafter – “the military authority”), pointing out that he was a member of the Jehovah ’ s Witnesses, and also a religious minister. The applicant stated that, based on his religious beliefs and conscience, he could not perform military service. He requested to be exempt from both “mandatory military service” ( privalomoji karo tarnyba ) and “alternative national defence service” ( alternatyvioji krašto apsaugos tarnyba ). If his request was not to be granted, the applicant requested a right to perform “alternative civilian service” provided that it was not punitive, and would not be in any way controlled or supervised by the military, and did not require that he perform work contributing to the military actions or would otherwise act against his conscience. In support of his request, the applicant relied on Article 9 of the Convention, the Court ’ s case-law concerning conscientious objection, and the position of the United Nations Human Rights Committee (see the Relevant international materials below).

Subsequently, on 7 September 2015 the military authority took a decision not to exempt the applicant from the “initial mandatory military service”.

On 10 September 2015, the military authority rejected the applicant ’ s request of 15 June 2015. The authority stated that only ministers of traditional religions may be exempt from military service, which did not cover the Jehovah ’ s Witnesses. It also stated that the applicant ’ s request had been transferred to the competent commission appointed by the Minister of Defence which decides questions of alternative national defence service. Lastly, military authority noted that the Law on National Conscription provided not only exemption from mandatory military service , but also deferment of both mandatory military service as well as deferment of the alternative national defence service. Should the applicant lodge such a request, it would be examined. The military authority did not respond to the applicant ’ s request to perform alternative civilian service.

On 23 October 2015 the decisions were upheld by the Ministry of Defence.

The applicant started proceedings before the Vilnius Regional Administrative Court, claiming that he, being a minister of the Jehovah ’ s Witnesses, should be exempted from the obligation to perform both mandatory military service and alternative national defence service. Responding to the claim, the military authority explained to the court that the decisions taken in respect of the applicant did not create actual legal consequences for him, since in September 2015 the military authority had already suspended the draft, having received a sufficient number of volunteers wishing to perform military service. The military authority also mentioned that a priest of a non-traditional religion could ask that the obligation to perform mandatory military service or alternative national defence service be deferred for the duration when he performs the minister ’ s duties.

The applicant states that the Vilnius Regional Administrative Court then suspended the proceedings pending the Constitutional Court ’ s decision in a related case, which also involved one of the Jehovah ’ s Witnesses. The Constitutional Court delivered the ruling on 4 July 2017 (see the Relevant domestic law part below).

Having resumed the examination of the applicant ’ s case, on 20 September 2017 the Vilnius Regional Administrative Court granted his appeal in part. The court noted that the military authority had not answered the applicant ’ s request regarding the possibility to perform alternative civilian service. Accordingly, from the military authority ’ s decisions in respect of the applicant it was not clear whether he had a right to perform alternative civilian service, and whether such service was possible at all. Those decisions also lacked any reference to any legal regulation concerning the possibility to perform alternative civilian service. Even though the Ministry of Defence had upheld the military authority ’ s decisions, the Ministry had not expressed its position as to alternative civilian service either. The Vilnius Regional Administrative Court therefore directed the military authority to re-examine the applicant ’ s request of 15 June 2015. The court also quashed the military authority ’ s decision of 7 September 2015 and the Ministry of Defence decision of 23 October 2015.

The military authority and the Ministry of Defence both lodged appeals. In its appeal the Ministry of Defence submitted that the applicant ’ s request to be allowed to perform alternative civilian service was unrelated to the obligation to perform military service, because the Law on National Conscription did not even provide for alternative civilian service.

On 9 November 2017 the applicant filed a written objection to both appeals, requesting, inter alia , that the Supreme Administrative Court suspend his case and refer to the Constitutional Court a question whether the State ’ s failure to include in the Law on National Conscription an exemption from both mandatory military service and alternative national defence service for conscientious objectors violated Article 26 of the Constitution, which protects freedom of religion. The applicant argued that such question had not been answered by the Constitutional Court in its ruling of 4 July 2017.

On 10 April 2019 the Supreme Administrative Court granted the appeals by the military authority and the Ministry of Defence and quashed the first instance court ’ s decision.

Referring to the Constitutional Court ’ s ruling of 4 July 2017, the Supreme Administrative Court held that the constitutional duty of a citizen to perform mandatory military service or alternative national defence service applied both to the priests of churches and religious organisations that were considered traditional in Lithuania, and also to the priests of non-traditional churches or religious organisations. Accordingly, there was no basis to exempt the applicant from his constitutional duty to perform mandatory military or alternative national defence service. The Supreme Administrative Court also held that there was no reason to make a referral to the Constitutional Court regarding what the applicant saw as legislative omission.

The Constitution reads:

Article 26

“Freedom of thought, conscience, and religion shall not be restricted.

Everyone shall have the right to freely choose any religion or belief and, either alone or with others, in private or in public, to profess his religion, to perform religious ceremonies, as well as to practise and teach his belief.

...

The freedom to profess and spread religion or belief may not be limited otherwise than by law and only when this is necessary to guarantee the security of society, public order, the health or morals of people, or other basic rights or freedoms of the person.

...”

Article 27

“Convictions, practised religion, or belief may not serve as a justification for a crime or failure to observe laws.”

Article 29

“All persons shall be equal before the law, courts, and other State institutions and officials.

Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.”

Article 43

“The State shall recognise the churches and religious organisations that are traditional in Lithuania; other churches and religious organisations shall be recognised provided that they have support in society, and their teaching and practices are not in conflict with the law and public morals.

...

There shall be no State religion in Lithuania.”

Article 139

“The defence of the State of Lithuania against a foreign armed attack shall be the right and duty of each citizen of the Republic of Lithuania.

The citizens of the Republic of Lithuania must perform military or alternative national defence service according to the procedure established by law.

The organisation of national defence shall be established by law.”

The Law on National Conscription ( Karo prievolės įstatymas ), insofar as relevant, reads as follows:

Article 3. Exemption from Mandatory Military Service

“The following citizens shall be exempted from mandatory military service:

...

7) priests of the religious communities and associations considered traditional in Lithuania and recognised by the State.”

Article 16. Conditions for Performing Alternative National Defence Service

“1. Alternative national defence service is performed instead of initial mandatory military service or basic military training...

...

4. The conscripts perform the alternative national defence service at State or municipal institutions, as labour useful to the community. The conscripts are assigned to serve in positions which do not require to use weapon, special means or coercion.

...”

Article 18. Imposition of alternative national defence service instead of mandatory military service or basic military training

“1. Conscripts who wish to complete alternative national defence service shall ... submit a request to a competent institution of the national defence system... The request must be based on religious or conscientious beliefs not allowing to serve under arms.

2. The conscripts ’ requests for alternative national defence service are examined and recommendations are issued by a special commission, consisting of [members of] [public organisations], traditional religion communities and religious associations, and the representatives of universities. ... Having regard to the recommendation of the commission, the institution of the national defence system, which manages the conscription, takes a decision to grant or deny the request to perform alternative national defence service.”

On 23 February 2000 the Government passed Resolution no. 206 establishing the rules for performing alternative national defence service at the State and municipal institutions ( Alternatyviosios krašto apsaugos tarnybos atlikimo valstybės ir savivaldybių institucijose ir įstaigose tvarkos aprašas ). The rules provide that alternative national defence service is exercised by performing labour useful to the community. Requests to perform alternative national defence service are decided by a military commission, which also decides on the work to be performed. Should no civilian work assignment be available, the conscript is assigned to perform an alternative service at the institutions of national defence (points 8 and 9). The conscript, who has been assigned to perform alternative national defence service at a [State or municipal] institution, must show up at the military institution which manages such service. A specialist of that institution then accompanies the conscript to his place of work (point 12). The head of the institution where the conscript performs his work notifies the military in writing about the conscript ’ s tasks and duties. The conscript cannot be dismissed without the military ’ s approval (points 14, 21 and 22).

The Law on Religious Communities and Associations ( Religinių bendruomenių ir bendrijų įstatymas ) specifies that the State recognises nine traditional religious communities and associations existing in Lithuania, which comprise a part of Lithuania ’ s historical, spiritual and social heritage: Roman Catholic, Greek Catholic, Evangelical Lutheran, Evangelical Reformed, Russian Orthodox, Old Believer, Judaist, Sunni Muslim, and Karaite (Article 5).

In the ruling of 4 July 2017 regarding the compatibility with the Constitution of certain provisions of the Law on National Conscription, the Constitutional Court held (hereinafter, the summary of the ruling by the Constitutional Court itself):

“By this ruling, ... the Constitutional Court declared Item 7 of Article 3 of the Law on National Conscription (wording of 23 June 2011), insofar as priests of the religious communities and associations considered traditional in Lithuania and recognised by the State were exempted from mandatory military service, to have been in conflict with Article 29 and Paragraph 2 of Article 139 of the Constitution.

...

[T]he Constitutional Court pointed out that ... convictions, practised religion, or belief may not serve as a justification for ... failure to observe laws ... and, while implementing his/her rights and exercising his/her freedoms, everyone must observe the Constitution and laws and must not restrict the rights and freedoms of other people .... Among other things, this means that, on the grounds of his/her convictions, practised religion, or belief, no one may refuse to fulfil constitutionally established duties, inter alia , the duty of a citizen to perform military or alternative national defence service, or demand the exemption from these duties.

...

The Constitutional Court also noted that, under Paragraph 2 of Article 139 of the Constitution, the legislature may provide for the possibility of deferring the fulfilment of the constitutional duty of citizens to perform military or alternative national defence service in cases where the citizen is temporarily unable to perform this service due to the important reasons specified in the law or the important interests of the person, family, or society which might be injured if such service were not deferred at a given time. Once the reasons for deferring service are no longer applicable, the citizen must perform military or alternative national defence service.

...

[T]he Constitutional Court noted that the fact that a person is a priest of a church or religious organisation (i.e. holds a certain social status relating to the professed religion) is not related to any such circumstances due to which the citizens would be objectively unable to perform the duty in question and which could constitutionally justify their exemption from this duty, especially in view of the fact that, under the Constitution, persons who are unable to perform military service due to their religious or other convictions have the right to perform alternative national defence service instead of military service, as well as that the fulfilment of the constitutional duty to perform military or alternative national defence service may be deferred due to important reasons...

... [T]he Constitutional Court noted in this ruling that a different constitutional status between the churches and religious organisations that are traditional in Lithuania and other churches and religious organisations as collective legal entities may not serve as a basis for constitutionally justifying the exemption of priests of the churches and religious organisations that are traditional in Lithuania from the constitutional duty held by them as citizens to perform military or alternative national defence service.

According to the Constitutional Court, the legal regulation authorising exemption from mandatory military service, i.e. from the constitutional duty of citizens to perform military or alternative national defence service, in the absence of any constitutionally justifiable basis, violated the requirement, stemming from Paragraph 2 of Article 139 of the Constitution, that a law may establish only such conditions for exempting citizens from their constitutional duty to perform military or alternative national defence service that are related to objective circumstances due to which the citizens are unable to perform this duty; in addition, such a legal regulation led to a constitutionally unjustifiable difference of priests of the religious communities and associations considered traditional in Lithuania from other citizens; therefore, this legal regulation also violated the principle of the equality of the rights of persons under Article 29 of the Constitution.”

The Code of Administrative Law Violations ( Administracinių teisės pažeidimų kodeksas ) provides that failure to discharge draft obligations, as set out by the Law on National Conscription, is punishable by a fine of thirty to sixty euros. Such violation, if committed repeatedly, is punishable by a fine of sixty to one hundred and forty euros (Article 560).

The Criminal Code provides:

Article 314. Evasion of a Draft into Mandatory Military Service

“1. A military conscript who evades a draft into mandatory military service by impairing his health, simulating an illness or health disorder, forging documents or using other means of deception

shall be punished by arrest or by a custodial sentence for a term of up to three years.

2. A military conscript who evades a draft into mandatory military service, in the absence of the characteristics indicated in paragraph 1 of this Article, shall be considered to have committed a misdemeanour and

shall be punished by a fine or by arrest.”

In cases Cenk Atasoy v Turkey and Arda Sarkut v Turkey (Communication no. CCPR/C/104/D/1853-1854/2008), the United Nations Human Rights Committee held:

“10.4 (...) The Committee reiterates that the right to conscientious objection to military service is inherent to the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if the latter cannot be reconciled with the individual ’ s religion or beliefs. The right must not be impaired by coercion. A State party may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside of the military sphere and not under military command. The alternative service must not be of a punitive nature, but must rather be a real service to the community and compatible with respect for human rights.”

As regards the situation in Lithuania, in the Concluding observations on the fourth periodic report, in July 2018 the United Nations Human Rights Committee held as follows:

Freedom of thought and belief

“25. The Committee notes the information provided by the State party that military service based on conscription has not taken place since its reintroduction in 2015, as quotas have been fulfilled by volunteers. However, it is concerned that the alternative national defence service does not provide for alternative civil service independent of military control and supervision and the institutions of the national defence system, and that salaries are not comparable to those of military service (arts. 18 and 26).

26. The State party should ensure that the Law on National Conscription provides for conscientious objection in a manner consistent with articles 18 and 26 of the Covenant, ensuring that it provides for an alternative to military service outside of the military sphere and not under military command and on comparable salary terms, bearing in mind that article 18 protects freedom of conscience based on religious and non-religious beliefs.”

COMPLAINTS

Under Article 9 of the Convention the applicant complains that, despite his genuinely held religious beliefs and his conscience, he was denied a right to refuse military service. The applicant points out that he had never refused to comply with his civic obligations. To the contrary, he explicitly requested to be allowed to perform alternative civilian service and thus was prepared to share the societal burden equally with his compatriots engaged in military service.

The applicant also points out that, as it had been noted by the United Nations Human Rights Committee, Lithuania ’ s programme of alternative national defence service does not provide for alternative civilian service independent of military control and supervision. Among other factors, the decision whether to grant a request to perform such service or not is made by the military authorities, thus failing to afford the requisite guarantees of impartiality and independence. In the applicant ’ s view, the Lithuanian authorities were thus obliged to either entirely exempt him from conscription or defer his call up until the time when Lithuania enacts a law providing for genuine alternative civilian service.

As a result, the applicant is subject to the call up for military service and the consequent administrative and criminal penalties that would be associated with refusing it.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom of conscience or religion, within the meaning of Article 9 § 1 of the Convention (see Adyan and Others v. Armenia , no. 75604/11 , § 60, 12 October 2017, and Mushfig Mammadov and others v. Azerbaijan , no. 14604/08, § 78, 17 October 2019)?

If so, was that interference prescribed by law and necessary in terms of Article 9 § 2 (see, most recently, Dyagilev v. Russia , no. 49972/16, §§ 60 and 61, 10 March 2020 )?

2. Has there been a violation of the applicant ’ s freedom of conscience or religion, contrary to Article 9 of the Convention (see, for general principles, Bayatyan v. Armenia [GC], no. 23459/03, §§ 111-128, ECHR 2011 )?

Has the State organised and implemented a system of alternative service in a way to offer – whether in law or in practice – an alternative to military service of a genuinely civilian nature and one which is not deterrent or punitive in character (see Adyan , cited above, § 67 )?