Information Note on the Court’s case-law No. 123
October 2009
Bayatyan v. Armenia - 23459/03
Judgment 27.10.2009 [Section III]
Article 9
Article 9-1
Freedom of religion
Conviction of conscientious objector for refusing to perform military service: no violation
[This case was referred to the Grand Chamber on 11 May 2010]
Facts – The applicant, a Jehovah’s Witness who had been declared fit for military service, informed the authorities that he refused to serve in the military for conscientious reasons but was ready to carry out alternative civil service. When summoned to commence his military service in May 2001, the applicant failed to report for duty and temporarily left his home for fear of being subjected by force. He was charged with draft evasion and in 2002 was sentenced to two and a half years’ imprisonment. At the material time in Armenia there was no law offering alternative civil service for conscientious objectors.
Law – Article 9: The Court first took note of the fact that a majority of the Council of Europe Member States had adopted laws providing for alternative civil service for conscientious objectors. However, Article 9 had to be read together with Article 4 § 3 (b), which excluded from the definition of forced labour “any service of a military character or, in cases of conscientious objectors, in countries where they are recognised, service exacted instead of compulsory military service”. Consequently, Article 9 could not be interpreted as guaranteeing a right to refuse military service on conscientious grounds. At the material time Armenia had not yet recognised the right to conscientious objection, but had officially committed itself to recognise such a right and meanwhile to pardon all convicted conscientious objectors allowing them to perform alternative civil service once such a law was adopted. Even though in light of the foregoing the applicant could have had a legitimate expectation that he would be allowed to perform civil service instead of serving a prison sentence, the authorities could not be regarded as having breached their Convention obligations by convicting him for his refusal to serve in the military. Lastly, the Court noted that Armenia had enacted a law on alternative service in 2003, but its substance and the manner of its application fell beyond the scope of the applicant’s case.
Conclusion: no violation (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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