Communicated on 29 June 2017

THIRD SECTION

Application no. 49972/16 Maksim Andreyevich DYAGILEV against Russia lodged on 12 August 2016

STATEMENT OF FACTS

The applicant, Mr Maksim Dyagilev , is a Russian national, who was born in 1990 and lives in St Petersburg. He is represented before the Court by Mr A. Peredruk , a lawyer practising in St Petersburg.

A. The circumstances of the case

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

In 2014 the applicant graduated with a master ’ s degree in philosophy from the Herzen State Pedagogical University of Russia ( РГПУ им . А . И . Герцена ). He then became liable to be called up for conscription.

At the end of August 2014, in an attempt to find “a lawful way to avoid military service”, the applicant attended a legal seminar organised by t he Committee of Soldiers ’ Mothers in St Petersburg. He submitted that his participation in the seminar had finally allowed him to understand his adherence to pacifist philosophy.

On 4 September 2014 the applicant asked the local military recruitment office to enlist him in civilian service instead of its compulsory military alternative.

A military recruitment commission examined his request and dismissed it on 25 November 2014, having found the information provided to be insufficiently persuasive to conclude that the applicant was a genuine pacifist.

On the following day the applicant challenged that decision in court.

On 9 February 2015, while the judicial proceedings were still pending, the applicant lodged a second request for the replacement of compulsory military service. That request was returned to him without having been considered on the merits on the grounds that it was repetitive.

On 25 February 2015 the Frunzenskiy District Court of St Petersburg dismissed a complaint lodged by the applicant , reasoning as follows:

“ ... the court does not establish the existence of humanistic or pacifist convictions from the personal file of the conscript, since these circumstances are not mentioned in his autobiography or personal reference. His views regarding the impossibility of performing military service should have been forming over a period of time, whereas spontaneously crystallised convictions cannot serve as grounds for requesting permission to perform the alternative civilian service.

Considering all the items of evidence provided and their intertwined nature, the court finds the circumstances relied on by the applicant to be not proven.”

On 12 August 2015 the St Petersburg City Court upheld the judgment of 25 February 2015 on appeal. The relevant parts of the judgment read as follows:

“... the right to have compulsory military service replaced with its civilian alternative does not imply that a citizen can unconditionally choose between the military and civilian types of service, and it does not mean that an individual ’ s negative attitude towards military service in itself ... guarantees a right to have compulsory military service replaced.

This position is also reflected in the practice of the European Court of Human Rights, which has stated that only when opposition to military service is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person ’ s conscience or his deeply and genuinely held religious or other beliefs, does it constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 [of the Convention] ...

[The court] finds that it is not sufficient for a citizen to simply indicate that his personal convictions conflict with his obligation to serve in the army in order to have compulsory military service replaced.

An individual must substantiate such an assertion, indicate the reasons and circumstances which impelled him to ask for the replacement, mention facts confirming his deep beliefs that conflict with military service and adduce relevant evidence.

...

As it follows from the facts of the case [the applicant] ... presented his autobiography where he enumerated his main education periods ... stated that his beliefs about human beings had been formed under the influence of several philosophers, and that his views on the army and military way of life had been affected by his brother ’ s army stories. According to the applicant, his convictions finally crystallised after he had attended a legal seminar organised by t he Committee of Soldiers ’ Mothers in St Petersburg.

A personal reference given to the applicant [by his employer] listed both his negative and positive qualities; however, like his autobiography, it did not contain information showing the existence of deep convictions preventing him from performing military service.

...

[The applicant] has failed to prove ... the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions ...

...

[The applicant] was given an opportunity to bring to the attention of the military recruitment commission his arguments on the existence of convictions or religious beliefs ... However, no convictions objectively preventing him from doing compulsory military service were established.”

Subsequent cassation appeals lodged by the applicant were dismissed on 3 November 2015 by the St Petersburg City Court and on 24 March 2016 by the Supreme Court. The cassation courts fully endorsed the appeal court ’ s reasoning.

B. Relevant domestic law and practice

1. The Civilian Service Act

The organisation of the alternative civilian service in Russia is regulated by t he Civilian Service Act, Law No. 113-FZ of 25 July 2002 ( Федеральный закон от 25.07.2002 N 113-ФЗ « Об альтернативной гражданской службе » ) .

Section 2 of the Act provides that all citizens are entitled to have compulsory military service replaced by its civilian alternative if their personal convictions or religious beliefs conflict with military service.

Section 10 § 1 of the Act sets out the sequence in which citizens are dispatched to the alternative civilian service: a request is submitted for the replacement of military service; the request is examined by a military recruitment commission; a medical examination is carried out; and the individual concerned is dispatched to his or her assigned duty station.

Section 11 § 1 of the Act sets up time limits for submitting a request for replacement of military service. It indicates, inter alia , that individuals who enjoy draft deferments (e.g. university studies) are to submit their requests within 10 days after such deferment comes to an end.

According to Section 11 § 1 ( in fine ) of the Act states that individuals are under obligation to substantiate that their convictions are in conflict with military service.

Under section 11 § 2 of the Act a request for the replacement of military service must indicate the reasons and circumstances prompting an individual to submit it. The request should be accompanied by an autobiography and a personal reference from a place of work and/or studies. Other documents may be attached to the request, and the individual may indicate the names of persons willing to testify in support of the request.

Section 12 provides that the military recruitment commission should only examine a request for the replacement of military service in the presence of the applicant. The military recruitment commission should consider any oral statement made by the applicant and also by any individuals who have agreed to testify in support of the request; the documents provided; and any additional material obtained by the commission. Decisions on requests are to be adopted by a simple majority. Two-thirds of the members of the military recruitment commission must be present to constitute a quorum. A request can be dismissed if, inter alia , documents and other material submitted do not prove that the applicant ’ s personal convictions or beliefs are in conflict with the obligation to serve in the army.

Section 15 provides that all decisions adopted by the military recruitment commission may be challenged in court. A disputed decision is automatically suspended pending resolution of judicial proceedings.

2. The Compulsory Military Service Act

Section 27 § 1 of the Compulsory Military Service Act, Law No. 53-FZ of 28 March 2002 ( Федеральный закон от 28.03.1998 N 53-ФЗ «О воинской обязанности и военной службе » ) provides that a military recruitment commission consists of: head or deputy head of a municipal entity – president of the military recruitment commission; officer of a military recruitment office – deputy president of the military recruitment commission; secretary of the commission; medical officer in charge of medical certification of individuals liable to be called up for conscription; representative of a local internal affairs agency; representative of an education governing agency; representative of an employment office.

According to Section 27 § 2 of the Act representatives of other agencies and organisations could be included into the commission.

3. Ruling of the Constitutional Court no. 447-O of 17 October 2006

Examining compatibility of Section 11 of the Civilian Service Act with the Constitution, the Constitutional Court ruled as follows :

“... it is not possible to limit individual freedom of conscience and religion and, accordingly, the right for an alternative civilian service with procedural rules .... Therefore, Section 11 of the Civilian Service Act ... cannot be interpreted as setting up time limits ... that could not be renewed for good reasons.”

C. Relevant international documents

1. The Committee of Ministers of the Council of Europe

On 9 April 1987 the Committee of Ministers adopted Recommendation No. R (87) 8 which laid down, inter alia , the following basic principles:

“ A. Basic principle

1. Anyone liable to conscription for military service who , for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service;

B. Procedure

2. States may lay down a suitable procedure for the examination of applications for conscientious objector status or accept a declaration giving reasons by the person concerned;

3. With a view to the effective application of the principles and rules of this recommendation, persons liable to conscription shall be informed in advance of their rights. For this purpose, the state shall provide them with all relevant information directly or allow private organisations concerned to furnish that information;

4. Applications for conscientious objector status shall be made in ways and within time-limits to be determined having due regard to the requirement that the procedure for the examination of an application should, as a rule, be completed before the individual concerned is actually enlisted in the forces;

5. The examination of applications shall include all the necessary guarantees for a fair procedure;

6. An applicant shall have the right to appeal against the decision at first instance;

7. The appeal authority shall be separate from the military administration and composed so as to ensure its independence.”

2. T he United Nations Commission on Human Rights

On 18 April 1988 the Commission adopted Resolution No. 1998/77 whereby it stated as follows:

“The Commission on Human Rights,

...

4. Calls upon States that ... to establish independent and impartial decision-making bodies with the task of determining whether a conscientious objection is genuinely held in a specific case, taking account of the requirement not to discriminate between conscientious objectors on the basis of the nature of their particular beliefs; ...”

COMPLAINT

The applicant complains under Article 9 of the Convention that his request for the replacement of compulsory military service with its civilian alternative had been denied.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom of conscience within the meaning of Article 9 § 1 of the Convention?

2. If so, was that interference prescribed by law and necessary in terms of Article 9 § 2 of the Convention?

3. Is there an effective domestic mechanism for the examination of requests for the replacement of compulsory military service with its civilian alternative (see Tarhan v. Turkey , no. 9078/06 , § 60, 17 July 2012, and Savda v. Turkey , no. 42730/05 , § 98, 12 June 2012 )? Is the mechanism independent from the military administration and is it composed so as to provide sufficient guarantees for individuals against bias and arbitrariness (see Papavasilakis v. Greece , no. 66899/14, 15 September 2016 )?

4. Has the applicant ’ s request for alternative service been treated in full accordance with the domestic procedure?

5. The Government are asked to provide general statistical information on alternative civil service in Russia, in particular, annual number of requests for the civilian service made and the number of such requests granted. The Government are also requested to submit, where possible, statistical information and/or examples of cases where refusals to assign individuals to alternative civilian service were overruled by domestic courts.

6. The Government are asked to submit a copy of the decision of the Military Recruitment Commission for Frunzenskiy District of St Petersburg of 25 November 2014 dismissing the applicant ’ s request for the replacement of compulsory military service.