CONCURRING OPINION OF JUDGE FURA

1. Although I voted with the majority in finding no violation of Article 9 I did so out of discipline and respect for the Court ' s case-law. I would like to add the following.

2. It is somewhat surpris ing that the Court ' s case-law under Article 9 is not more developed. The existing case-law, however, is clear in as much as there is no right of conscientious objection to military service within the Convention generally or under Article 9 in particular. So to apply general law to someone who refuses to do military service on grounds of conscience would not violate Article 9.

3. A State may - but is not obliged to - recognise conscientious objection and only if it does so should it provide some kind of substitute non-military service as an alternative. A more harmonized view on these issues seems to be emerging in Europe as of late. In most States recognised conscientious objectors have the right to perform an alternative service. In some States, however, only religious grounds are accepted and in other States there seems to be no legal system enabling conscientious objectors to be recognised. Sometimes an alternative service may last for much longer than the military service.

4. Lately, the Court has shown some willingness to tackle the issue of conscientious objection by looking beyond Article 9. In T hlimmenos v Greece (2000) the applicant ' s previous conviction for refusing to wear a military uniform could not justify his exclusion from the chartered accountants profession. In that case it was held that the State ' s failure to distinguish his case from that of more serious criminal offences – from which it was significantly different (paragraph 44) – meant that Article 14 taken in conjunction with Article 9 had been violated. The Court has in other cases based its reasoning on Article 3 (degrading treatment) and Article 5 (unlawful detention): see Ülke v Turkey (2006) and Tsirlis and Kouloumpas v Greece (1997) respectively.

5. To date the Court has not found that the obligation to perform military service breaches Article 9 but it seems to have been prepared to examine the proportionality of sanctions imposed on conscientious objectors and to find a violation of Article 9 if excessive, like in Thlimmenos, where the objector served a prison sentence and was excluded from the profession of chartered accountants.

6. My preliminary conclusion in the case at hand was to relinquish and allow the Grand Chamber to re-examine the issue /revisit the case-law/ and maybe to take a step further and to state that to sentence someone who refuses to do military service on grounds of conscience would be in violation of Article 9. Present day conditions might have changed and lead to such a conclusion, at least when the sentence includes prison.

7. As an alternative I would have preferred to requalify the complaint and examine it under Article 3 since the applicant was imprisoned against the clear (and perhaps even legally binding) commitment of Armenia (see paragraph 43 of the judgment) and this might have amounted to degrading treatment, drawing inspiration from Ãœlke v Turkey and from the Nuclear Test Case decided by the International Court of Justice ( Nuclear Tests (Australia v. France), Judgement, I.C.J. Reports 1974, p.253, paragraphs 42-60) .

DISSENTING OPINION OF JUDGE POWER

1 . In consideration of its application for membership of the Council of Europe, the respondent state, in May 2000, made a unilateral declaration whereby it undertook 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, allowing them instead to choose to perform alternative civilian service when that law entered into force. Subsequent to that state ' s ratification of the Convention and more than two years after its declaration, the applicant was convicted and sentenced to a significant term of imprisonment because he refused to be drafted for compulsory military service. His refusal was based upon his religious beliefs which, it is uncon test ed, were genuinely held. He was at all times willing to perform alternative civilian service.

2 . In finding no violation of Article 9, the m ajority, in my view, ha s failed to have sufficient regard to two important principles, namely, that the Convention is a ' living instrument ' whose provisions must be interpreted in accordance with cu rrent legal standards and norms and that, notwithstanding the lawfulness of a permitted interference with a Convention right, the Court retains its supervisory role in assessing the proportionality of any measure taken.

(i) The Convention is a ' Living Instrument '

3 . Compulsory military service is not per se prohibited under the Convention but the Court has repeatedly stressed that this treaty is a ' living instrument ' and that its provisions must be approached in a dynamic and evolutive manner if its object and purpose is to be achieved. Its norms, in other words, must be interpreted and applied in the light of present day conditions. [1] Indeed, the Court has recognised that its decisions must be kept under review [2] and that in coming to a judgment it cannot but be influenced by the developments and commonly accepted standards and policy of the member states of the Council of Europe. [3]

4 . Bound, as it considers itself, by the case law of the former Commission, the majority ' s finding, in my view, fails to reflect the almost universal acceptance within democratic societies that “ the right of conscientious objection is a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the Universal Declaration of Human Rights and European Convention on Human Rights”. [4] The Council of Europe (as far back as 1987), the United Nations High Commissioner for Human Rights and the European Parliament have all underscored this point. [5] Indeed, the respondent state ' s own declaration made in 2000 confirmed its acceptance of what were, even then, cu rrent and common European legal standards in this area and its subsequent conduct in convicting and imprisoning the applicant was inconsistent with its recognition of those standards and its commitment to apply them in practice. [6] Adopting the Court ' s general approach to interpreting and applying the Convention in the light of current legal norms and standards I cannot but conclude that there has been a violation of Article 9 in this case.

5 . In any event, it is clear that the Court ' s position on the right of conscientious objection can be distinguished from the approach adopted by the former Commission. It is evident that the Court regards the question as one that raises important issues of human rights. In Thlimmenos v. Greece the Grand Chamber considered that, unlike other criminal offences, a conviction for refusing on religious and philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude and that the ongoing adverse consequences of the applicant ' s earlier criminal conviction in this regard (a prohibition on entry to a profession) was sufficient to constitute a violation of Article 14 in conjunction with Article 9. [7] In Stefanov v. Bulgaria the Court agreed to strike out the case when satisfied that a settlement reached between the parties “was based on respect for human rights” as defined in the Convention. [8] Its decision recorded in detail the terms of the settlement which provided for the dismissal of all criminal proceedings against the applicant (and others) for refusing to perform military service, the elimination of all penalties imposed, the furnishing of undertakings by the respondent state to introduce legislation providing for a total amnesty of these cases and for a purely civilian alternative to military service and, finally, for the payment of the applicant ' s costs and expenses. Six years later, in Ülke v. Turkey the Court found that the repeated imprisonment of a peace activist for refusing to serve in the military constituted a violation of Article 3. It considered that t he domestic law had failed to make provision for conscientious objectors and did not provide an appropriate means of dealing with refusals to perform military service on account of one ' s beliefs. [9] In view of the foregoing, it would appear that the majority ' s finding is not just incompatible with current European standards on the question of conscientious objection but that it parts company with the Court itself in terms of the overall direction of the jurisprudence as discernible in the case law.

(ii) Proportionality of Interference

6 . I accept that Article 4 § 3 (b) neither recogni s es nor excludes a right of conscientious objection but it does not follow that a state which excludes recognition thereby acquires a carte blanche in terms of how it deals with those who assert such an objection. The substantive right s under Article 9 § 1 remain and any permitted interference with the freedom to manifest one ' s religion or belief must be shown to be justified as “necessary” for the protection of the public interests listed in 9 § 2 (none of which, incidentally, includes the interests of national security).

7 . The Court has consistently held that a margin of appreciation which a state enjoys in assessing whether and to what extent interference is necessary goes hand in hand with European supervision covering both the legislation and the decisions applying it. [10] When carrying out that supervision, the Court must ascertain whether the measures taken at national level are justifiable in principle and are proportionate [11] and it must look at the impugned judicial decisions against the background of the case as a whole. [12] The respondent state in this case has offered no justification as to what, if any, ' pressing social need ' existed which necessitated the incarceration of the applicant in the particular circumstances of this matter. [13] The onus was on that state to demonstrate this necessity, all the more so in circumstances where it had already confirmed its recognition of and commitment to current European standards in this area. It has not established that the applicant ' s imprisonment was necessary, thus failing the proportionality test , and this failure confirms me in my view that there has been a violation of Article 9. Insofar as the majority did not carry out the supervisory function reserved to this Court, its approach, it seems to me, is not consistent with the Court ' s practice in interpreting the necessity of state interference with a protected Convention right.

[1] Tyrer v . United Kingdom (1978) 2 EHRR 1 § 31.

[2] Rees v. United Kingdom (1986 ) 9 EHRR § 56; see also the subsequent cases of Cossey v. United Kingdom (1990) 13 EHRR § 622; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR § 163; and Goodwin v. United Kingdom [GC], no. 28957/95, ECHR 2002 ‑ VI.

[3] Tyrer, § 31.

[4] Recommendation (1518) of the PACE (2001), § 44 .

[5] See, inter alia, Recommendation No. R (87) 8, adopted by the Committee of Ministers on  9 April 1987; Recommendation No (1518) of the PACE (2001 ); Report of the United Nations Office of the High Commissioner for Human Rights, 27 February 2006; and Charter of Fundamental Rights of the European Union (2000).

[6] Notwithstanding the undertaking given by Armenia to adopt a law on alternative service in compliance with European standards, the Parliamentary Assembly of the Council of Europe was dis appointed to note in 2007 that current law still does 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.  The Assembly was “ deeply concerned to note that for lack of a genuine form of civilian service, dozens of conscientious objectors, most of whom are Jehovah’s Witnesses, continue to be imprisoned, since they prefer prison to an alternative service not of a truly civilian nature ”. (PACE Monitoring Committee Resolution 1532 (2007).

[7] [GC], no. 34369/97, ECHR 2000 ‑ I V.

[8] Application no. 32 438/96, admissibility decision of 6 April 2000 .

[9] Ülke v. Turkey , no. 39437/98, 24 January 2006, at § 61 and 62.

[10] Groppera Radio AG and Others v. Switzerland , 28 March 1990, Series A no. 173; Markt Intern Verlag GmbH and Klaus Beermann v. Germany , 20 November 1989, Series A no. 165; and Kokkinakis v. Greece , 25 May 1993, § 47, Series A no. 260 ‑ A.

[11] Groppera Radio AG and Others v. Switzerland , § 72; see also Barfod v. Denmark , 22 February 1989, Series A no 149.

[12] Kokkinakis v Greece, 25 May 1993, § 47 , Series A no. 260 ‑ A .

[13] See Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, § 125 , ECHR 2001 ‑ XII where the Court held that the mere assertion of a danger to national security d id not absolve the state from indicating the justification for advancing such a claim.