Bayatyan v. Armenia (no. 23459/03) – Grand Chamber Judgment 7 July 2011. In this long-awaited opinion, the Grand Chamber held that the applicant’s conviction for draft evasion was in violation of the ECHR Article 9 guarantees of freedom of religion or belief, leaving open the question of whether the conviction was lawful.  

A Jehovah’s Witness, Mr. Bayatyan refused to perform military service for conscientious reasons when he became eligible for the draft in 2001, though he was prepared to do alternative civil service. The authorities informed him that since there was no law in Armenia on alternative service, he was obliged to serve in the army. He was convicted of draft evasion and sentenced to prison. Mr. Bayatyan complained that his conviction violated his rights under Article 9 and submitted that the Article should be interpreted in the light of present-day conditions, namely the fact that the majority of Council of Europe Member States have recognised the right of conscientious objection.

In its Third-Section Chamber Judgment of 27 October 2009, the Court, following established case law of the European Commission of Human Rights, found that Article 9 must be read in conjunction with Article 4 (prohibition of slavery and of forced or compulsory labour), which left the choice of recognizing conscientious objection to each State that had ratified the Convention. Article 9 did not guarantee a right to refuse military service on conscientious grounds and was therefore inapplicable in Mr. Bayatyan’s case.

On 10 May 2010 the case was referred to the Grand Chamber at the request of the applicant. A Grand Chamber hearing was held on 24 November 2010.  In its judgment of 7 July 2011, the Grand Chamber reasoned that at the time of Mr. Bayatyan’s case the majority of COE member states, including Armenia, had already recognized in law and practice the right to conscientious objection, and therefore Article 9 should no longer be read in conjunction with Article 4. Mr. Bayatyan’s objection to military service was judged to represent a conviction of “sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.”

Under Article 41, the Court held that Armenia should pay Mr. Bayatyan EUR 10,000 in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.  On 4 August 2011, the government of Armenia appoved payment to the victim.

In additional news from the Court, on 13 July 2011, Grand Chamber hearing was granted in Mouvement Raëlien Suisse v. Switzerland (no. 16354/06) and Herrmann v. Germany (no. 9300/07) and rejected in Siebenhaar v. Germany (no. 18136/02), Gisayev v. Russia (no. 14811/04), and Milanović v. Serbia (no. 44614/07).