Communicated on 29 February 2016

FIRST SECTION

Application no. 75604/11 Artur ADYAN and others against Armenia lodged on 6 December 2011

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

1. Background to the case

The applicants are four Jehovah ’ s Witnesses who were found to be fit for military service.

In May and June 2011 all four were called up for military service. They failed to appear, and instead addressed letters to the local Military Commissary and the Regional Prosecutor, refusing to perform either military or alternative service. They stated that they were Jehovah ’ s Witnesses and claimed that, having studied the Alternative Service Act, they had come to the conclusion that, according to European standards, the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. Their conscience did not allow them to work directly or indirectly for the military system. The alternative labour service was known to be organised and supervised by the military authorities because the alternative labour serviceman ’ s card was marked “Armed Forces of Armenia”, and servicemen were subject to military disciplinary or other penalties and to registration at the military subdivisions of the Armed Forces of Armenia. Furthermore, the law required that they remain around the clock, seven days a week at their place of service, which amounted to house arrest and was unacceptable to them. The requirement to perform military service or the existing alternative service violated their rights guaranteed by Article 9 of the Convention. The applicants added that they were willing to perform alternative service as long as it was not connected with the military authorities and did not violate their religious beliefs.

2. Charges against the applicants and placement of the applicants Adyan , Margaryan and Khachatryan in pre-trial detention

(a) The applicant Avetisyan

On 15 June 2011 charges were brought against the applicant Avetisyan under Article 327 § 1 of the Criminal Code (evasion of a regular call-up to military or alternative service).

(b) The applicants Adyan and Margaryan

On 6 July 2011 the applicants Adyan and Margaryan were arrested.

On 7 July 2011 the same charges were brought against them and the Syunik Regional Court decided to detain them upon the investigator ’ s motions, finding these to be substantiated.

On 28 July 2011 the Criminal Court of Appeal examined their appeals against these decisions and decided to dismiss them, finding, inter alia , that a penalty of more than one year was envisaged for the imputed offence, which increased the probability that, if remaining at large, they could commit a new offence or evade punishment.

(c) The applicant Khachatryan

On 27 July 2011 the same charges were brought against the applicant Khachatryan and the Tavush Regional Court decided to detain him upon the investigator ’ s motion, finding that there was a reasonable suspicion that he had committed the imputed offence.

On an unspecified date his criminal case was sent to court.

On 19 August 2011 the Tavush Regional Court decided to set the case down for trial, finding that his detention was to remain unchanged.

On 24 August 2011 the Criminal Court of Appeal examined the applicant Khachatryan ’ s appeal against the decision of 27 July 2011 and decided to dismiss it, finding, inter alia , that a penalty of more than one year was envisaged for the imputed offence, which increased the probability that, if remaining at large, he could commit a new offence or evade punishment.

3. The court proceedings and the applicants ’ conviction

In the course of the court proceedings the applicants submitted that their opposition to the military and alternative service was based on their religious beliefs. The alternative service provided under the domestic law was not of a genuinely civilian nature as it was supervised by the military authorities. They were willing to perform alternative service as long as it was not supervised by the military and was of a genuinely civilian nature.

On 19 July 2011 the Kotayk Regional Court found the applicant Avetisyan guilty as charged and sentenced him to two years and six months in prison. The applicant was taken into custody on the same day.

On 27 July 2011 the Syunik Regional Court imposed similar sentences on the applicants Adyan and Margaryan .

On 25 November 2011 the Tavush Regional Court imposed a similar sentence on the applicant Khachatryan.

The applicants lodged appeals against their convictions. They argued that their convictions were in violation of Article 9 of the Convention. Their opposition to the alternative service provided under the domestic law was based on their religious beliefs, as this service was not of a genuinely civilian nature and failed to meet European standards. They reiterated their readiness to perform a genuinely civilian alternative service.

On 2 December 2011 the Criminal Court of Appeal upheld the judgments of the Regional Courts in the cases of the applicants Adyan and Avetisyan . The Court of Appeal found that the Armenian law made a clear distinction between alternative military service and alternative labour service, the latter being of a civilian nature. Certain conditions stipulated in Section 17 of the Alternative Service Act, such as those concerning the notification of the Military Commissariat, the transfer of an alternative labour serviceman to another institution and his release to and registration in the reserve, did not suggest that this service was of a military nature, since it was the head of the relevant institution who decided on the type, procedures and conditions of work to be performed by the alternative labour serviceman without any interference by the military authorities. Furthermore, pursuant to Section 18 of the Act, the head of the relevant institution was also responsible for the organisation and implementation of the alternative labour service. The fact that the alternative labour service was supervised by a State body competent in the field of defence did not mean that the service was not of a civilian nature, since it was performed outside the armed forces of Armenia. It followed from the Act that the legal status of alternative labour servicemen was regulated by labour rather than military relations. The servicemen were to follow orders only from the heads of the relevant institutions and to abide by the internal disciplinary rules of such institutions. Questions related to their social security were regulated by the legislation on State pensions rather than military laws. Pursuant to Government Decree no. 940-N of 25 June 2004, the alternative labour service was to be performed in institutions under the Ministry of Health and the Ministry of Labour and Social Issues and their tasks were those of an orderly. The fact that the Minister of Defence was also involved in the organisation of the alternative service did not mean that the labour service became military service, since the Minister and certain subdivisions of the Armed Forces were called upon to participate only in the organisation of the alternative military service. Finally, as regards the fact that the military authorities carried out supervision of the labour servicemen together with the heads of the relevant institutions, this did not change the nature of the service performed either. The Court of Appeal concluded that the applicants ’ convictions did not violate their rights guaranteed under Article 9 of the Convention.

On 9 December 2011 and 6 March 2012 the Criminal Court of Appeal adopted similar judgments in the cases of the applicants Margaryan and Khachatryan.

The applicants lodged appeals on points of law, raising the same arguments as before.

On 7, 8 and 17 February and 7 May 2012 the Court of Cassation declared their appeals inadmissible for lack of merit.

B. Relevant domestic law

1. The Criminal Code

Article 327 § 1 provides that evasion of a regular call-up to fixed-term military or alternative service , in the absence of grounds for exemption from such service under the law, shall be punishable by detention for a period not exceeding two months or imprisonment for a period not exceeding three years.

2. The Alternative Service Act (in force from 1 July 2004)

Section 2 provides that alternative service is service replacing the compulsory fixed-term military service, which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions. A lternative service includes (a) alternative military service, namely military service performed in the armed forces of Armenia which does not involve being on combat duty or the carrying, keeping, maintenance and use of arms; and (b) alternative labour service, namely labour service performed outside the armed forces of Armenia. The purpose of alternative service is to ensure the fulfilment of a civic obligation to the motherland and society and it does not have a punitive, demeaning or degrading nature.

Section 3 provides that 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, may perform alternative service.

Section 5 provided at the material time that the period of alternative military service was 36 months, while the period of alternative labour service was 42 months.

Section 6 provided at the material time that a person who had applied for alternative service, after the call-up was announced, was obliged to appear at the local military commissariat within the period indicated in the summons. Questions related to the conduct of the call-up to alternative service were dealt with by the local military commissariats set up in accordance with a procedure prescribed by the Military Liability Act and the national commission examining applications seeking the performance of alternative service, whose creation, functioning and composition were to be established by a Government decree.

Section 14 provided at the material time that the call-up to alternative service was organised and supervised by a State body competent in the field of defence .

Section 17 provided at the material time that the citizen called up for alternative labour service would be sent, in accordance with the prescribed procedure, to the institution where he would carry out his alternative labour service. The head of the institution where the alternative service was carried out would include the serviceman in the personnel list of the institution, decide on the type, procedures and conditions of work to be performed by him, ensuring that he was fully occupied, and notify in writing within three days the Military Commissariat of the territory where the institution was located. The alternative labour serviceman could be transferred to another institution or another territory to perform his service upon the order or initiative of the State body competent in the field of defence . The alternative labour serviceman was to remain at his place of service around the clock. The alternative labour serviceman would be released from service to the reserve and registered in the reserve in accordance with a procedure prescribed by law.

Section 18 provides that the head of the institution where alternative labour service is performed shall be responsible, inter alia , for organising and implementing the alternative labour service in the institution.

On 28 April 2011 amendments were proposed to the Act. In the Explanatory Report, the main deficiencies of the Act were indicated as the supervision of the alternative service by the military, as well as the composition of the National Commission dealing with questions of alternative service, which was composed mainly of military personnel, and the procedures before that commission. It appears that the proposed amendments were eventually adopted on 2 May 2013. Among other amendments, the period of alternative l abour service was reduced to 36 months. Section 14 was also modified and currently provides that alternative labour service is organised and supervised by a competent State body and there can be no military supervision of the alternative labour service.

3. Government Decree No. 940-N of 25 June 2004 approving the list of institutions where alternative service could be served and the form and the manner of wearing the alternative serviceman ’ s uniform

Pursuant to the Decree, alternative labour servicemen shall perform their service in the institutions under the Ministry of Health and the Ministry of Labour and Social Issues. The Decree further approved the uniform of the alternative labour serviceman.

4. Government Decree No. 271-N of 10 March 2005 approving the creation, functioning and composition of the National Commission examining applications seeking the performance of alternative service

Pursuant to this Decree, the National Commission was to be composed of, inter alia , the Head of the General Staff of the Armed Forces of Armenia, the Military Commissar of Armenia. This Decree further prescribed the procedures before the National Commission.

5. Order No. 142 of 20 December 2004 of the Head of General Staff of the Armenian Armed Forces

For the purpose of supervising the work discipline of persons called up to alternative labour service, the Military Commissary of Armenia and the Head of the Military Police Department of the Ministry of Defence were ordered to carry out joint spot checks to verify the presence of persons performing alternative labour service in the institutions located within the territory of regional military commissariats and their sub-divisions. The results of such checks were to be reported to the Head of the General Staff and necessary measures were to be taken to find those who were absent.

C. Relevant international documents

1. The Parliamentary Assembly of the Council of Europe (PACE)

(a) Opinion no. 221 (2000): Armenia ’ s application for membership of the Council of Europe

The PACE noted that Armenia undertook to honour the following commitment: “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 had come into force, to perform non-armed military service or alternative civilian service”.

(b) Recommendation 1518 (2001): Exercise of the right of conscientious objection to military service in Council of Europe member States

The PACE recommended the Committee of Ministers to invite those member States that have not yet done so to introduce into their legislation genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.

(c) Resolution 1532 (2007): Honouring of obligations and commitments by Armenia

The PACE, as regards Armenia ’ s commitment to adopt a law on alternative service “in compliance with European standards” and “pardon all conscientious objectors sentenced to prison terms”, noted with disappointment that the current law, as amended in 2005 and subsequently in June 2006, still did 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. It was deeply concerned that, for lack of a genuine form of civilian service, dozens of conscientious objectors, most of whom are Jehovah ’ s Witnesses, continued to be imprisoned, since they preferred prison to an alternative service which was not of a truly civilian nature. The PACE urged the Armenian authorities to revise the law on alternative service in accordance with the recommendations made by the Council of Europe experts and, in the meantime, to pardon the young conscientious objectors serving prison sentences.

(d) Resolution 1676 (2009): The state of human rights in Europe and the progress of the Assembly ’ s monitoring procedure

The PACE stated that “legislation on alternative civil service had not yet been introduced in Azerbaijan and Turkey, whereas in Armenia and Russia relevant legislation existed but did not offer conscientious objectors the guarantee of a genuine alternative service of a clearly civilian nature; the continuing imprisonment of conscientious objectors in Armenia and Turkey was a matter of serious concern”.

2. The Committee of Ministers

(a) Monitoring Group (GT-SUIVI-AGO) – 6th Progress Report, CM(2005)100, 14 September 2005

It was noted in Paragraph 13 that “other initiatives taken by the Armenian authorities which should be followed with the same attention included reform of the law on alternative service (which, as the law stood, could not really be said to exist in Armenia)”.

(b) Steering Committee for Human Rights (CDDH): Recommendation CM/Rec(2010)4 of the Committee of Ministers to member States on the human rights of members of the armed forces

In 2010 the Committee of Ministers adopted Recommendation Rec(2010)4, recommending the member States to ensure that any limitations on the right to freedom of thought, conscience and religion of members of the armed forces comply with the requirements of Article 9 § 2 of the Convention, that conscripts have the right to be granted conscientious objector status and that alternative service of a civilian nature be proposed to them. The Explanatory Memorandum to this Recommendation noted, in particular, that “the length of any alternative service required by objectors should be reasonable in comparison with the length of ordinary military service. It further noted that the European Committee of Social Rights had found a length of alternative service which exceeded one ‑ and ‑ a ‑ half times the length of military service to be excessive.

3. The Commissioner for Human Rights of the Council of Europe

In his Report of 9 May 2011 following his visit to Armenia from 18 to 21 January 2011, the Commissioner noted:

“The issue of imprisoned conscientious objectors – currently, all of whom are members of the Jehovah ’ s Witnesses community – has been on the table for many years. Conscientious objectors are not willing to perform an alternative service option which is under the supervision of the military. There is still no alternative to military service available in Armenia which can be qualified as genuinely civilian in nature. The Commissioner strongly believes that conscientious objectors should not be imprisoned and urges the authorities to put in place an alternative civilian service.”

In their Response to this Report, the Government admitted that the exercise of the right to conscientious objection was still flawed, and intended to introduce further legislative amendments to promote civilian control over alternative service.

4. The European Commission against Racism and Intolerance (ECRI)

In its Second report on Armenia adopted on 30 June 2006 the ECRI noted:

“The overwhelming majority of conscientious objectors in Armenia are Jehovah ’ s Witnesses. They are thus disproportionately affected by the issue of alternative service. On this point, the Armenian Parliament passed, on 1 December 2003, [the Alternative Service Act] which took effect on 1 July 2004. This law provides for alternative military service of 36 months and an alt ernative civilian service of 42 months. ECRI notes that alternative civilian service, which lasts longer than actual military service, is carried out under military supervision. ECRI has further been informed that directors of institutions (which include hospitals) where conscientious objectors carry out their duty receive their instructions about the conditions and modalities of their service from the military. Moreover, conscientious objectors are sent to military hospitals for medical treatment, they are largely confined to their place of service and required to wear military uniform. They also receive assignments and changes of assignments which are determined by the military. ... ECRI wishes to point out that the aim of the [Alternative Service Act] was to prevent conscientious objectors from being imprisoned for refusing to carry out military service. However, as a number of people are currently in prison for leaving or refusing to join the alternative civilian service due to the military influence on this service, the aim of the [Alternative Service Act] has unfortunately not been met.”

COMPLAINTS

The applicants Adyan , Margaryan and Khachatryan complain under Article 5 § 1 of the Convention that their detention was based on stereotyped reasoning by the courts.

The applicants complain that their convictions violated their rights guaranteed under Article 9 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the courts provide relevant and sufficient reasons for the detention of the applicants Adyan , Margaryan and Khachatryan, as required by Article 5 § 3 of the Convention?

2. Has there been an interference with the applicants ’ right to freedom of thought, conscience and religion guaranteed by Article 9 of the Convention? If so, has there been a violation of that Article?

Appendix

N o .

Firstname LASTNAME

Birth date

Nationality

Place of residence

Representative

Artur ADYAN

13/01/1991

Armenian

Yerevan

Petr MUZNY

Garegin AVETISYAN

07/02/1993

Armenian

Yerevan

Petr MUZNY

Harutyun KHACHATRYAN

01/06/1993

Armenian

Tsaghkavan

Petr MUZNY

Vahagn MARGARYAN

21/02/1993

Armenian

Kapan

Petr MUZNY