Bayatyan v Armenia: Written comments submitted by Amnesty International, Conscience and Peace Tax International, Friends World Committee for Consultation (Quakers), International Commission of Jurists, and War Resisters' International

IN THE GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS

Application No. 23459/03

VAHAN BAYATYAN

Applicant

-V-

ARMENIA

Respondent Government

WRITTEN COMMENTS SUBMITTED
BY AMNESTY INTERNATIONAL, CONSCIENCE AND PEACE TAX INTERNATIONAL,
FRIENDS WORLD COMMITTEE FOR CONSULTATION (QUAKERS), INTERNATIONAL COMMISSION
OF JURISTS, AND WAR RESISTERS' INTERNATIONAL, PURSUANT TO ARTICLE 36
§ 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND RULE 44 § 3 OF
THE RULES OF THE COURT

Amnesty
International

1
Easton Street

London
WC1X 0DW

United
Kingdom

Conscience
and Peace Tax International

Bruineveld
11

B1030
Leuven

Belgium

International
Commission of Jurists

P.O.
Box 91

33
rue des Bains

1211
Geneva 8

Switzerland

War
Resisters' International

5
Caledonian Road

London
N1 9DX

United
Kingdom

Friends
World Committee for Consultation (Quakers)

Quaker
UN Office

13
Avenue du Mervelet

1209
Geneva

Switzerland

I. Introduction

1.
These comments are submitted by Amnesty
International, Conscience and Peace Tax International, Friends World
Committee for Consultation (Quakers), International Commission of
Jurists, and War Resisters' International (‘the Interveners’),
pursuant to Article 36 § 2 of the European Convention on Human
Rights following
the leave granted by the President of the Court in accordance with
Rule 44
§ 3
of the Rules of the Court by letter dated 24 June 2010. (See Annex 1
for a Description of the Intervening Organisations.)

2.
The present submission draws substantially on the interpretation by
the UN Human Rights Committee of the International Covenant on Civil
and Political Rights (‘ICCPR’) and by other international and
regional bodies of the right to freedom of thought, conscience and
religion in relation to conscientious objection to military service.

II. Issues
addressed in this submission

3.
This submission addresses: the protection of conscientious objection
to military service in international human rights standards;
limitations on manifestation of religion or belief; and the reference
to military service and conscientious objection in Article 4 of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms (hereafter, “the Convention”).

II.i Overview

4.
The right to freedom of thought, conscience and religion comprises
two elements: the right to hold convictions or beliefs, and the right
to manifest one’s religion or belief in worship, teaching, practice
and observance. The Interveners submit, consistent with the
jurisprudence of other international human rights bodies and
mechanisms, that conscientious objection to military service is a
belief of sufficient seriousness and cogency to attract the
protection of Article 9.¹
Compulsion to engage in military service contrary to such a belief
is in itself a violation of the individual’s freedom of conscience.
In addition, compulsory military service, without provision for
those who are conscientious objectors for religious or other reasons,
amounts to an unjustified interference with the right to manifest a
religion or belief. The UN Human Rights Committee has identified
both elements in relation to conscientious objection to military
service. In its most recent Views on an individual petition the
Committee found that the authors’ “conviction and sentence
amounted to an infringement of their freedom of conscience and a
restriction on their ability to manifest their religion or belief”.²

5.
Conscientious objection to military service has been recognised by
the Human Rights Committee as deriving from the right to freedom of
thought, conscience and religion under Article 18 of the
International Covenant on Civil and Political Rights ('ICCPR').
Repeated resolutions of the former UN Commission on Human Rights
recognised that conscientious objection to military service derives
from principles and reasons of conscience, including profound
convictions, arising from religious, moral, ethical, humanitarian or
similar motives.³
Special procedures mandated by the UN Human Rights Council have
similarly addressed the question. The UN Special Rapporteur on
freedom of religion or belief has made specific recommendations in
regard to conscientious objection⁴
and taken up individual cases.⁵
In 2008 the UN Working Group on Arbitrary Detention ruled that
imprisonment of conscientious objectors to military service was a
form of arbitrary detention.⁶
The Committee of Ministers of the Council of Europe,⁷
the Parliamentary Assembly of the Council of Europe (PACE),⁸
and the European Parliament⁹
have all recognised conscientious objection to military service. It
is also explicitly recognised in the European Union (EU) Charter of
Fundamental Rights and in the Ibero-American Convention on Young
People's Rights. Moreover, of the 17 member states of the Council of
Europe which still have conscription, Turkey is the only one which
has no provision for conscientious objection to military service.¹⁰
Given these developments both internationally and in Council of
Europe member states, and in light of the principle that the
Convention is a 'living instrument', the Interveners submit that the
Court should affirm that Article 9 protects the right of
conscientious objectors not to engage in compulsory military service.

II.ii Conscientious
objection to military service and the right to freedom of thought,
conscience and religion

6.
All member states of the Council of Europe and hence all High
Contracting Parties to the Convention are also parties to the ICCPR.
The provisions of Article 9 of the Convention and Article 18 of the
ICCPR are almost identical.¹¹
It is, therefore, relevant to consider the interpretation of Article
18 of the ICCPR by the Human Rights Committee,
the expert body which monitors States’ implementation of their
obligations under the ICCPR.

7.
The Human Rights Committee has explicitly stated its view that
conscientious objection to military service is protected as part of
the right to freedom of thought, conscience and religion,
inasmuch as the obligation to use lethal force may seriously conflict
with the freedom of conscience and the right to manifest one's
religion or belief. It
has affirmed this in one of its General Comments (interpreting the
ICCPR provisions), in numerous Concluding Observations (in relation
to States parties' reports under the ICCPR), and in 'Views'
(decisions on individual petitions under the First Optional Protocol
to the ICCPR).¹²

8.
Initially, in 1987, the Human Rights Committee followed the same
approach as the European Commission of Human Rights in declaring
inadmissible its first case concerning a conscientious objector to
military service,¹³
referring
to the wording in Article 8 § 3 c (ii) of the ICCPR (the equivalent
of Article 4 § 3 b of the Convention). However, through the State
reporting process, and the consideration of other individual cases
relating to conscientious objection and alternative service (but not
the central question of whether conscientious objection itself was
protected under the ICCPR), the Committee’s position evolved.

9.
In 1993, the Committee adopted General Comment No.
22¹⁴
on
the right to freedom of thought, conscience and religion (Article 18,
ICCPR). In it the Committee noted that “a growing number of States
have in their laws exempted from compulsory military service citizens
who genuinely hold religious or other beliefs that forbid the
performance of military service”. The Committee added:
“The
Covenant does not explicitly refer to a right to conscientious
objection, but the Committee believes that such a right can be
derived from article 18, inasmuch as the obligation to use lethal
force may seriously conflict with the freedom of conscience and the
right to manifest one's religion or belief.”

10.
On the basis of General Comment No. 22, and using the procedure
which it started in 1991 of unanimously adopting Concluding
Observations¹⁵
when considering States’ reports on their implementation of the
ICCPR, the Committee has addressed the issue of conscientious
objection on numerous occasions,¹⁶
all but one explicitly or implicitly under Article 18.¹⁷
The Concluding Observations have included specific recommendations
to States to introduce legislation to provide for conscientious
objection in States which fail to provide for recognition of such
status, as well as to address discriminatory and unsatisfactory
provisions where some recognition existed. For example, in the case
of Chile: “The State party should expedite the adoption of
legislation recognizing the right of conscientious objection to
military service, ensuring that conscientious objectors are not
subject to discrimination or punishment and recognizing that
conscientious objection can occur at any time, even when a person’s
military service has already begun.”¹⁸

11.
In 1998, some years before the present application under the
Convention was submitted, Armenia's most recent periodic report was
considered by the Human Rights Committee. The Committee regretted
“the lack of legal provision for alternatives to military service
in case of conscientious objection … [and deplored] the
conscription of conscientious objectors by force and their punishment
by military courts, and the instances of reprisals against family
members.”¹⁹

12.
It was not until 2004 that the Committee received an individual
petition from conscientious objectors in a State with conscription
which had no legislative provision for conscientious objection and
who were, therefore, sentenced to prison for their religiously based
objection. In that case, Yeo-Bum
Yoon and Myung-Jin Choi v Republic of Korea,²⁰
the Committee had its first opportunity to address the precise
question of the protection of conscientious objection to military
service under the ICCPR in an individual case. The Committee
reviewed its earlier case law and the relevance of the provision
concerning forced labour (Article 8, ICCPR). It concluded that this
article “neither recognizes nor excludes a right of conscientious
objection” and that “the present claim is to be assessed solely
in the light of Article 18 of the Covenant, the understanding of
which evolves as that of any other guarantee of the Covenant over
time in view of its text and purpose”.²¹
Ruling on this case in November 2006, the Committee concluded that
conscientious objection to military service is protected under
Article 18, and, after considering the permissible limitations on the
manifestation of religion or belief, it found a violation of Article
18 §
1
of the ICCPR.

Regional
standards, interpretation and practice

13.
There are no judgments of other regional human rights courts about
conscientious objection to military service and only one decision of
the Inter-American Commission on Human Rights, in 2005.²²
That decision preceded the Human Rights Committee’s decision in
Yoon and Choi v Republic of Korea.
It followed
the earlier case law of the Human Rights Committee and the European
Commission of Human Rights in interpreting the equivalent provisions
of the American Convention on Human Rights.²³
However, later in the same year, in approving a friendly settlement,
the Inter-American Commission recognised the evolving nature of the
right to conscientious objection and made an explicit reference to
General Comment No. 22 of the Human Rights Committee.²⁴
In that case, the Bolivian State, represented by the Ministry of
Defence, agreed, despite the lack of legislation, to provide a
conscientious objector who had refused to perform military service
with a document of completed military service without levying on him
the military tax normally imposed on those declared exempt, and also
to issue a Ministerial Resolution stipulating that in the event of an
armed conflict he would not be called up. The State also undertook
“in accordance with international human rights law, to include the
right to conscientious objection to military service in the
preliminary draft of the amended regulations for military law
currently under consideration by the Ministry of Defense and the
armed forces”, and “to encourage congressional approval of
military legislation that would include the right to conscientious
objection to military service”. In approving the terms of the
friendly settlement as being compatible with the American Convention,
the Inter-American Commission reiterated that the purpose of the
friendly settlement procedure was to reach a settlement on the basis
of respect for the human rights recognised in the Convention, and
that the State’s acceptance of it was an expression of its good
faith to comply with its obligations under the Convention.²⁵

14.
There are currently two regional standards
relevant
to Council of Europe member states,
both agreed in the last decade, which explicitly recognise the right
of conscientious objection to military service. The EU Charter of
Fundamental Rights (2000), Article 10:

1.
Everyone has the right to freedom of thought, conscience and
religion. This right includes freedom to change religion or belief
and freedom, either alone or in community with others and in public
or in private, to manifest religion or belief, in worship, teaching,
practice and observance.

2.
The right to conscientious objection is recognised, in accordance
with the national laws governing the exercise of this right.

Situating
this recognition of conscientious objection within Article 10 of the
Charter confirms its association with the right to freedom of
thought, conscience and religion. The Explanations
Relating to the Charter of Fundamental Rights state:
“The right guaranteed in paragraph 2 corresponds to national
constitutional traditions and to the development of national
legislation on this issue”.²⁶
Annex 3 of this Submission sets out the position of all the member
states of the Council of Europe (to which all EU member states
belong) on conscientious objection to military service. This
information demonstrates the universal provision for conscientious
objection to military service by EU States who have or have had
conscription. Secondly, the Ibero-American Convention on Young
People's Rights (2008), Article 12: “Young people have the right to
form a conscientious objection against compulsory military service.”
Spain
is a party to, and Portugal has signed, this Convention.²⁷

Committee
of Ministers of the Council of Europe

15.
The Committee of Ministers, the Council of Europe's decison-making
body, has adopted two recommendations relevant to conscientious
objection. Recommendation No. R(87) of 9 April 1987 calls on all member states to recognise the right to conscientious objection to
military service and to subscribe to the basic principle that “anyone
liable to conscription to military service who, for compelling
reasons of conscience, refuses to be involved in the use of arms,
shall have the right to be released from the obligation to perform
such service”,
and urges the governments of member states, insofar as they have not
already done so, to bring their national law and practice into line
with this basic principle.

16.
Most recently, on 24 February 2010 the Committee of Ministers
adopted Recommendation CM/Rec (2010)4 on human rights of members of the armed forces. It is particularly significant that in this Recommendation, in contrast to Recommendation No. R(87)8, the Committee of Ministers of the Council of Europe situate the provisions on the right to
conscientious objection to military service squarely within the right
to freedom of thought, conscience and religion.
Section H on the right to freedom of thought, conscience and
religion, urges States to implement the following recommendation:
“For the purposes of compulsory military service, conscripts should
have the right to be granted conscientious objector status and an
alternative service of a civilian nature should be proposed to them.”
It then goes on to provide for the release of professional members
of the armed forces on grounds of conscience, and addresses issues of
non-discrimination, non-criminalisation, and the duty to inform
members of the armed forces of their rights and the procedures they
should follow in this respect.

Parliamentary
Assembly of the Council of Europe
(PACE):

17.
In Recommendation 1518 of the Council of Europe Parliamentary
Assembly, adopted in May 2001, the Assembly noted that “the
exercise of the right to conscientious objection to military service
has been an ongoing concern of the Council of Europe for over thirty
years”. The Assembly also stated plainly that “the right of
conscientious objection is a fundamental aspect of the right to
freedom of thought, conscience and religion enshrined in the
Universal Declaration of Human Rights and the European Convention on
Human Rights”.
The Parliamentary Assembly recommended that the Committee of
Ministers incorporate the right of conscientious objection to
military service into the European Convention on Human Rights by
means of an additional protocol amending Articles 4 §
3
b and 9.²⁸
The Committee of Ministers decided not to act upon this
recommendation, stating that its preferred course
of action was to “make a sustained effort to implement the 1987
Recommendation”.²⁹

18.
Finally, promulgation of legislation in accordance with
international standards on conscientious objection to military
service has been included in the accession criteria for new members
of the Council of Europe where compulsory military service has
applied.³⁰
The
Interveners draw attention in particular to PACE Opinion 221 (2000)
on Armenia's application for membership of the Council of Europe.
The Opinion recorded that Armenia had promised to adopt within three
years a law on alternative service for conscientious objectors.³¹

II.iii Limitations
to the freedom to manifest one's religion or belief

19.
Under Article 9 § 2 of the Convention, “Freedom to manifest one's
religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
³²

20.
It is notable that, unlike the similar provisions in Articles 8, 10
and 11 of the Convention, national security is not included as one of
the grounds for possible limitation under Article 9. The same is
true of the almost identical wording of Article 18 §
3
of the ICCPR, as the Human Rights Committee specifically noted in its
General Comment No. 22, §
8.

21.
In the case of Yoon and Choi v Republic of Korea
the Human Rights Committee examined the Government arguments to see
whether its refusal to recognise conscientious objection and the
penalties imposed on the individuals who had refused to carry out
military service fulfilled the requirements to constitute permissible
restrictions on the manifestation of religion or belief within the
terms of Article 18 §
3
of the ICCPR. In considering these arguments, the Committee first
set out the general interpretation: “Such restriction must be
justified by the permissible limits described in paragraph 3 of
article 18, that is, that any restriction must be prescribed by law
and be necessary to protect public safety, order, health or morals or
the fundamental rights and freedoms of others”. In addition, they
emphasized that “such restriction must not impair the very essence
of the right in question”.
³³

22.
The Human Rights Committee then went on to consider both the
specific arguments put forward by the Government, and the “relevant
State practice, that an increasing number of those States parties to
the Covenant which have retained compulsory military service have
introduced alternatives to compulsory military service”. The
Committee concluded “that the State party has failed to show what
special disadvantage would be involved for it if the rights of the
authors under article 18 would be fully respected” and thus “that
the State party has not demonstrated that in the present case the
restriction in question is necessary, within the meaning of article
18, paragraph 3, of the Covenant”.³⁴

23.
In March 2010, the Human Rights Committee unanimously reiterated its
position in a similar case of objectors who were a Buddhist, a
Catholic and a number with conscientious objections not based in a
specific religion, finding “an infringement of their freedom of
conscience and a restriction on their ability to manifest their
religion or belief. The Committee finds that as the State party has
not demonstrated that in the present cases the restrictions in
question were necessary, within the meaning of article 18, paragraph
3, it has violated article 18, paragraph 1, of the Covenant.”
³⁵

24.
In relation to the interpretation of the Convention, it is notable
that of the 17 member states of the Council of Europe which still
have conscription, Turkey is the only one which has no provision
whatever for conscientious objection to military service; Azerbaijan
has a Constitutional provision but it has yet to be implemented in
legislation. Armenia has had a provision since 2003 (subsequent to
the events in the case under consideration). Conscription formerly
applied in 23 further Council of Europe member states; at the time it
was abolished or suspended each of the 23 provided for conscientious
objection.

25.
In the light of the near universal State practice within the Council
of Europe region recognising conscientious objection to military
service,³⁶
as well as the Human Rights Committee’s insistence that “such
restriction must not impair the very essence of the right in
question”, the Interveners contend that a State's failure to make
any provision for conscientious objection to military service is an
interference which cannot be justified in terms of Article 9 § 2 of
the Convention.

II.iv Exceptions
to the prohibition on forced labour

26.
One of the issues which has arisen in relation to the protection of
conscientious objection to military service under both the Convention
and the ICCPR is the reference under their respective provisions
relating to the prohibition on forced labour.³⁷

27.
The Human Rights Committee explicitly addressed the question of
Article 8 in relation to conscientious objection to military service
in the individual cases of Yeo-Bum Yoon and Myung-Jin Choi.
The Committee concluded:

The
Committee … notes that article 8, paragraph 3, of the Covenant
excludes from the scope of "forced or compulsory labour",
which is proscribed, "any service of a military character and,
in countries where conscientious objection is recognized, any
national service required by law of conscientious objectors".
It follows that article 8 of the Covenant itself neither recognizes
nor excludes a right of conscientious objection. Thus, the present
claim is to be assessed solely in the light of article 18 of the
Covenant, the understanding of which evolves as that of any other
guarantee of the Covenant over time in view of its text and purpose.³⁸

28.
The Interveners submit that an evolution in thinking comparable to
that of the Human Rights Committee between 1985 and 2006 (see paras.
8-12 above) had occurred with respect to the understanding of
conscientious objection to military service under the Convention,
beginning with the decisions of the former European Commission on
Human Rights. The Chamber judgment in Bayatyan
is silent on this evolution as was pointed out by Judge Power in her
dissenting opinion. In their referral request to the Grand Chamber,
the applicants traced the shift away from the traditional
interpretation of the relationship between Article 4 §
3
b and Article 9. The former Commission’s inadmissibility decision
in Grandrath
v Germany, the
leading decision of that body, held that the engagement of Article 4
§
3
b referring to conscientious objection precluded the recognition of
an individual conscientious objector as a victim under Article 9 of
the Convention.³⁹
In Tsirlis
and Kouloumpas v Greece,
Commissioner Liddy citing the concurring opinion of Mr Eusthadiades
in Grandrath,
challenged the position that the engagement of provisions of Article
4 of the Convention meant that Article 9 was inapplicable.⁴⁰
In Thlimmenos
v Greece
six Commissioners, in a joint dissenting opinion referring to the
evolution of the Convention case law since Grandrath,
doubted
if that decision continued to be appropriate.⁴¹
The six Commissioners decided this case on conscientious objection
to military service by the direct application of Article 9 and
considered that there had been a violation of that Article on the
facts of the case.⁴²

29.
The purpose of Article 4 §
3 is clear. It is to exclude certain activities from the prohibition
of forced labour under Article 4: “For the purpose of this article
the term ‘forced or compulsory labour’ shall not include ...”,
and specifically to ensure that alternative service for conscientious
objectors is not per
se prohibited
as forced labour.⁴³

30.
The Interveners submit that to interpret the wording in Article 4 §
3
b as determinative of Article 9 is inappropriate. In particular, in
relation to Article 9, Article 4 §
3
b should not permit impairment of the right to freedom of thought,
conscience and religion, or any interference with the right to
manifest one's religion or belief.

III Conclusion

31.
It is the Interveners' submission that the weight of international
standards and guidance from both Council of Europe institutions and
international bodies outside the Council of Europe system, as well as
the jurisprudence of the UN Human Rights Committee, supports the
protection of conscientious objection to military service as a belief
under the right to freedom of thought, conscience and religion
(Article 9 of the Convention). It makes clear that where military
service is compulsory States are required to make provision for
conscientious objectors in order to comply with Article 9. The now
almost universal recognition of conscientious objection in Council of
Europe member states further supports a progressive development of
the Convention jurisprudence in this regard.⁴⁴

Footnotes