Communicated on 16 February 2018
FIRST SECTION
Application no. 12999/15
Artur AVANESYAN
against Armenia
lodged on 12 March 2015
STATEMENT OF FACTS
The applicant, Mr Artur Avanesyan, is an Armenian national, who was born in 1995 and lives in Masis. He is represented before the Court by Mr S.H. Brady Heath and Ms Y. Margaryan, lawyers practising in Strasbourg and Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Jehovah’s Witness. He was born and, at the material time, lived in the town of Askeran, situated in the unrecognised Nagorno Karabakh Republic (hereafter, Nagorno Karabakh). He is an Armenian national and bears an Armenian passport.
On 29 January 2014 the applicant received a summons to report for military service to the Askeran military commissariat (զինվորական կոմիսարիատ).
On 30 January 2014 the applicant applied to the Askeran military commissariat, stating that, being a Jehovah’s Witness, his conscience did not allow him to serve in the army. Since alternative civilian service was available in Armenia, he was willing to perform such service instead of compulsory military service.
On the same date, being convinced that his application would be rejected and fearing criminal prosecution, the applicant moved to the town of Masis in Armenia.
On 5 February 2014 he applied to the relevant authority to have his residence registered in Masis.
On 12 February 2014 he got registered with the Masis military commissariat which, on the same date, requested the Askeran military commissariat to transfer his personal file.
On 13 February 2014 the applicant applied to the Masis military commissariat, requesting that he be allowed to perform alternative civilian service instead of military service.
On 17 February 2014 the Askeran regional prosecutor’s office of Nagorno Karabakh instituted criminal proceedings in respect of the applicant under Article 347 § 1 of the Nagorno Karabakh Criminal Code (evasion of regular conscription to military service).
On 3 March 2014 an investigator from the Criminal Investigations Unit of the Nagorno Karabakh Police ordered that the applicant be brought in for questioning. This decision stated that a summons had been sent to the applicant’s address in Masis, ordering that he appear for questioning on 1 March 2014, which the applicant had failed to do.
On 14 March 2014 the investigator brought formal charges against the applicant under Article 347 § 1 of the Nagorno Karabakh Criminal Code and declared the applicant a wanted person, since his whereabouts were unknown and it had been impossible to bring him in because he was outside Nagorno Karabakh.
On the same date the First Instance Court of General Jurisdiction of Nagorno Karabakh ordered the applicant’s pre-trial detention on the same grounds.
The applicant alleges that his application for alternative civilian service lodged in Armenia was scheduled to be examined by the relevant Armenian authority on 25 July 2014.
On 14 July 2014 the applicant appeared at the Kentron police station in Yerevan upon a summons. He was immediately arrested and handed over to the officers of the Nagorno Karabakh Police who, on the same date, transported the applicant to Nagorno Karabakh and placed him in a remand prison.
On an unspecified date the trial into the applicant’s criminal case commenced at the First Instance Court of General Jurisdiction of Nagorno Karabakh. The applicant submitted before the court that his criminal prosecution violated his rights guaranteed by Article 9 of the Convention. He also argued that, as an Armenian national, he was entitled to perform alternative civilian service pursuant to the Alternative Service Act.
On 30 September 2014 the First Instance Court of General Jurisdiction of Nagorno Karabakh found the applicant guilty as charged and sentenced him to two years and six months’ imprisonment.
On 22 October 2014 the applicant lodged an appeal, raising similar arguments as before the trial court.
On 26 November 2014 the Appeal Court of Nagorno Karabakh dismissed the applicant’s appeal and upheld the judgment of the First Instance Court. The Appeal Court dismissed the applicant’s arguments under Article 9 of the Convention. It found that the Alternative Service Act, relied on by the applicant, was not applicable in Nagorno Karabakh; hence, the fact that the applicant was a Jehovah’s Witness did not give reasons to be exempted from serving in the Nagorno Karabakh army.
On 12 December 2014 the applicant lodged an appeal on points of law.
On 25 December 2014 the Supreme Court of Nagorno Karabakh declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant Armenian law
On 1 July 2004 alternative service was introduced in Armenia with the entry into force of the Alternative Service Act. Pursuant to section 3 of the Act, an Armenian citizen whose creed or religious beliefs contradict the performance of military service may perform alternative service, which includes alternative civilian service.
C. Relevant Nagorno Karabakh law
Article 347 § 1 of the Criminal Code of Nagorno Karabakh (2013) provides a penalty of imprisonment for evasion of regular conscription to fixed-term military service.
COMPLAINT
The applicant complains that his conviction violated the guarantees of Article 9 of the Convention.
QUESTIONS TO THE PARTIES
1. Does Armenia have jurisdiction over the matters complained of, within the meaning of Article 1 of the Convention (see Muradyan v. Armenia, no. 11275/07, §§ 126 and 127, 24 November 2016)?
2. Has there been a violation of the applicant’s rights guaranteed by Article 9 of the Convention?
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