DISSENTING OPINION OF JUDGE GYULUMYAN

To my regret, I am unable to agree with the majority of the Grand Chamber that there has been a violation of Article 9 of the Convention in the present case.

1. The applicant in this case was sentenced for refusing to perform military service on conscientious grounds as no law on alternative civilian service existed in Armenia at the material time. He was sentenced to two and a half years in prison and was released on parole on 22 July 2003 after having served about ten and a half months of his sentence. The Alternative Service Act was finally adopted on 17 December 2003, with effect from 1 July 2004.

2. In expressing my opinion, I do not need to emphasise the importance I attach to freedom of thought, conscience and religion and to the right to conscientious objection, but it is a matter of fact that the latter is not expressly provided for in the Convention.

The Convention and its Protocols do not guarantee, as such, any right to conscientious objection. Article 9 of the Convention does not give conscientious objectors the right to be exempted from military or substitute civilian service. Nor does it prevent a State from imposing sanctions on those who refuse such service.

The Court has reiterated on several occasions that Article 9 does not protect every act motivated or inspired by a religion or belief (see, among many other authorities, Kalaç v. Turkey , 1 July 1997, § 27, Reports of Judgments and Decisions 1997-IV; Arrowsmith v. the United Kingdom , no. 7050/75, Commission’s report of 12 October 1978, Decisions and Reports (DR) 19, p. 6; C. v. the United Kingdom , no. 10358/83, Commission decision of 15 December 1983, DR 37, p. 142; Tepeli and Others v. Turkey (dec.), no. 31876/96, 11 September 2001; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005-XI).

In its Recommendations 1518 (2001) and 1742 (2006), the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers incorporate the right of conscientious objection into the Convention by means of an Additional Protocol – a proposal which was not accepted by the Committee of Ministers. Like the Parliamentary Assembly, the European Parliament considered that the right to conscientious objection was inherent in the concept of freedom of thought, conscience and religion and also called for the incorporation of that right into the Convention.

I think that the role of this Court is to protect human rights which already exist in the Convention, not to create new rights. One can argue that the evolutive approach to the Convention permits the Court to broaden the rights protected. However, this in my view is not permitted when the Convention itself leaves the recognition of particular rights to the discretion of the Contracting Parties.

Article 4 § 3 (b) “clearly left the choice of recognising conscientious objectors to each Contracting Party” (see Bayatyan v. Armenia , no. 23459/03, § 63, 27 October 2009). This provision excludes from the definition of forced labour “any service of a military character or, in case of conscientious objectors in countries where they are recognised , service exacted instead of compulsory military service”.

3. I am fundamentally in disagreement with the majority’s conclusion that Article 9 should no longer be read in conjunction with Article 4 § 3 (b). This goes against the Court’s standing approach that the Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Klass and Others v. Germany , 6 September 1978, § 68, Series A no. 28; and also Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000-X; Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI; and Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X).

4. It was only in its most recent Recommendation of 2010 that the Committee of Ministers of the Council of Europe considered the right to conscientious objection as an integral part of the freedom of conscience and religion under Article 9, in the light of developments in the international arena.

The Charter of Fundamental Rights of the European Union, adopted in December 2000, which recognises the right to conscientious objection under the right to freedom of thought, conscience and religion, came into force only in December 2009.

Not until 2006 did the United Nations Human Rights Committee explicitly refuse to apply Article 8 of the International Covenant on Civil and Political Rights (ICCPR) in two cases against South Korea concerning conscientious objectors, examining their complaints solely under Article 18 of the ICCPR and finding a violation of that provision on account of the applicants’ conviction for refusal to serve in the army for reasons of conscience.

I would like to stress also that at the time when the applicant was convicted for refusing to serve in the armed forces because of his religious beliefs, there was an explicit case-law according to which the Convention and its Protocols do not guarantee, as such, any right to conscientious objection. The national authorities cannot be blamed for following the existing case-law and not implementing an approach reflecting developments which only came about at a later date.

5. As to the recognition of alternative service for conscientious objectors under the international commitments Armenia took on in 2000, upon joining the Council of Europe, in my view, it could not be considered as legally binding at the time. Armenia committed itself to recognise that right and to pardon all convicted conscientious objectors not immediately but within three years of accession . Armenia had complied with its commitments within three years of accession as promised. In that period, the Alternative Service Act was adopted, thirty-eight conscientious objectors were pardoned and the applicant himself was released on parole. It is clear, therefore, that this judgment was not necessary to make sure that Armenia would do what it promised to do.

6. If Article 9 is not applicable, it evidently cannot have been breached. That is why I voted against the finding of a violation. I doubt very much that the finding of a violation of Article 9 of the Convention delivered individual justice to the applicant. One may wonder if he can be considered to have been a victim at the time when he applied to this Court. Admittedly, he had been deprived of his liberty; however, he did not complain about that deprivation as such, but rather about the lack of any possibility for conscientious objectors to do alternative service. On the day the present application was lodged, the applicant was released on parole, and six months later the Alternative Service Act was adopted.

In several cases (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, ECHR 2007-I; Shevanova v. Latvia (striking out) [GC], no. 58822/00, 7 December 2007; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, 20 December 2007), the Court found that the matter giving rise to the applicants’ complaints could therefore now be considered “resolved” within the meaning of Article 37 § 1 (b), and struck the applications out of its list of cases. In those cases, the Court reasoned that after all, “the Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers’ Union v. Sweden , 6 February 1976, § 50, Series A no. 20; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others , cited above, § 90).

7. Lastly, I beg to differ from the judgment of the Court on just satisfaction under Article 41 of the Convention. I consider the sums awarded in respect of non-pecuniary damage and in respect of costs and expenses to be excessive.

Firstly, in my view it is not fair to give compensation to an applicant, as was done in the present case, when the Court departs from its existing case-law.

Secondly, there can be no doubt that the consistency of the Court’s case-law in awarding just satisfaction is also of particular importance, and compensation also has a bearing on foreseeability for a Government. Recently, the Court dealt with an identical issue in Ülke v. Turkey (no. 39437/98, 24 January 2006), on account of the anguish caused by nine criminal prosecutions that had all resulted in convictions of imprisonment, and the risk of being arrested again at any time; the award for non-pecuniary damage was the same as in the present case.

Lastly, it has been a long-standing practice of the Court to reduce awards for costs and expenses according to the number of violations found. In the present case, the applicant’s initial application to the Court included numerous other complaints under Article 5 §§ 1, 3 and 5, Article 6 and Article 14 of the Convention, which were declared inadmissible. The Court does not properly take into consideration that only one of the six complaints was declared admissible and only one violation was found, although it reiterates in paragraph 135 of the judgment that legal costs are only recoverable in so far as they relate to the violation found.

[1] . The relevant parts of Article 4 of the Convention provide: “2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: ... (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.”