DISSENTING OPINION OF JUDGE GYULUMYAN

The instant application was lodged at the same time as Bayatyan v. Armenia (GC, no. 23459/03, 7 July 2011) and raises the same issue under Article 9 of the Convention.

In the case of Bayatyan the Grand Chamber voted in favour of finding a violation of the above-said Article, and in the present case the majority of the Chamber followed the same approach.

For the reasons set out in my detailed dissenting opinion in Bayatyan , I voted against the majority on the admissibility and merits of the claim, and so I did the same in the present case.

CONCURRING OPINION OF JUDGE ZIEMELE

1. This case follows the approach that the Court took in the leading judgment in the case of Bayatyan v. Armenia ([GC], no. 23459/03, §§ 41-45, 7 July 2011). There are three main grounds for finding a violation of the right to freedom of religion in cases of conscientious objectors: first, a person’s conscience or deeply and genuinely held religious or other beliefs constituting a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 (see Bayatyan , cited above, § 110); second, the fact that at the time the alleged events took place in Armenia the right to conscientious objection was recognised in State practice in Europe; and, third, that Armenia had pledged to enact the necessary legislation to implement that right at domestic level.

2. The Bayatyan judgment, as followed by the Chamber in this case, raises a very interesting question regarding the application of the Convention in the light of an established regional customary norm with respect to a State which – in the context of a political process – has been given a certain time-limit for complying with that customary norm. The Court’s answer is that even if the facts of the case arose before and during the transitional period for the enactment of the relevant domestic law on alternative service granted to Armenia upon its accession to the Council of Europe, the obligation to respect the right to freedom of religion of conscientious objectors applies from the moment the right itself is established in international law and the State concerned has ratified the Convention. This sheds an interesting light on the role of the Council of Europe and the political process of negotiating the entrance conditions for prospective member States of the organisation. Neither the Grand Chamber in the Bayatyan judgment nor the Chamber in this case have provided a clear solution to this. Instead, the dialogue of Armenia with the Council of Europe has been one of the arguments considered by the Court as part of the balancing exercise between the rights of the applicants and the public interest.

3. It appears to me that the Court has in the past taken a clearer position on the question of possible conflicting obligations. For example, in the Slivenko v Latvia case it stated that:

“By ratifying the Convention and Protocols Nos. 1, 4, 6 and 7 on 27 June 1997, [Latvia] has undertaken to “secure”, as from that date, the rights and freedoms defined in the Convention and the said Protocols to everyone within its jurisdiction (Article 1 of the Convention), subject to any valid reservations made under Article 57 of the Convention. ... It follows from the text of Article 57 § 1 of the Convention, read in conjunction with Article 1, that ratification of the Convention by a State presupposes that any law then in force in its territory should be in conformity with the Convention. If that should not be the case, the State concerned has the possibility of entering a reservation in respect of the specific provisions of the Convention (or Protocols) with which it cannot fully comply by reason of the continued existence of the law in question (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 58 and 60, ECHR 2002 ‑ II (extracts))”.

4. Finally, in this and the other cases, I find the test established by the Court of a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 a rather difficult one. It is not clear to me how the Court will assess whether there is sufficient cogency, seriousness and cohesion. In the present case, the applicant became a Jehovah’s Witness the same year that he was registered as a person liable for military service. In any event, the Chamber did not examine the cogency of the beliefs of the applicant. The Court concluded that:

“.. the applicant was similarly a member of Jehovah’s Witnesses who sought to be exempted from military service not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions and the only reason why he was not able to do so and incurred criminal sanctions was the absence of such an opportunity” (see paragraph 44). It seems to me that the European Court acts on the basis of an assumption that the applicant indeed holds genuine convictions as confirmed by all the procedures that he has gone through at domestic level and that, in the absence of any proper domestic assessment or arguments to the contrary from the Government, the Court has had to maintain that assumption. I can certainly agree that the Government did not submit any evidence to the contrary or, for that matter, any other relevant explanation. In my view, there is still an unresolved question regarding the test and how it will be applied in practice in future cases.