5 October 2011 – Conscientious objection at the European Court of Human Rights: Comments on the Bayatyan v. Armenia judgment and some other pending cases, by Grégor Puppinck, Ph.D., Director of the ECLJ

July 2011 – Strasbourg  

The Grand Chamber has on 7 July 2011 issued its judgment in Bayatyan v. Armenia, heard in Strasbourg on 24 November 2010. Contrary to the Court’s 2009 Chamber Judgment, the Grand Chamber found a violation of ECHR Article 9 (right to freedom of religion or belief) in the conviction of Mr. Vahan Bayatyan, a Jehovah’s Witness and Armenian national, for draft evasion.

The case was lodged before the Court on 22 July 2003, and on 27 October 2009 the Third Section held, by six votes to one, that there had been no Article 9 violation in the conviction and ten-month prison sentence of Mr. Bayatyan for refusing, for conscientious reasons, to fulfill his mandatory military service. On 10 May 2010 the case was referred to the Grand Chamber at the request of the applicant. 

Mr. Bayatyan became eligible for the draft in 2001 and asserted that though his religious beliefs proscribed service in the military, 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 rather 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.

In its judgment of 7 July 2011, the Grand Chamber held that Mr. Bayatyan’s conviction for draft evasion violated Article 9, leaving open the question of whether the conviction was lawful. Reasoning 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, the Grand Chamber judged that 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.

In a dissenting opinion, Judge Gyulumyan, while affirming the right to freedom of conscience and belief, even of conscientious objection, asserted nevertheless that “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.”