In a new judgement of 20 July 2021, the European Court of Human Rights (ECtHR) found a violation of Article 9 (the right to freedom of thought, conscience and religion) of the European Convention of Human Rights, in the case of an Armenian conscientious objector from Nagorno-Karabakh who had been sentenced and imprisoned for refusing to perform military service.
The facts of the case
The applicant, Mr Artur Avanesyan, is a Jehovah’s Witness, and therefore a conscientious objector on religious grounds. He was born, and at the material time lived, in the town of Askeran, situated in the unrecognised “Nagorno Karabakh Republic” (hereafter the “NKR”). He is an Armenian national and has held an Armenian passport since 2012. In 2014 he was called up for military service by the military authorities of the “NKR”. He replied stating that, as 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 that service instead of compulsory military service. He then moved to Armenia fearing persecution. In Armenia he also petitioned to perform alternative service. However, he was charged in “NKR”, and subsequently Armenian police arrested him and handed over to “NKR” police which placed him in remand prison. He was sentenced by an “NKR” court to two years and six months’ imprisonment for draft evasion. His appeal was rejected, under the claim that the (Armenian) Alternative Service Act, relied on by the applicant, was not applicable in the “NKR”; hence, the fact that he was a Jehovah’s Witness did not constitute grounds for him to be exempted from serving in the “NKR” army. An appeal to the supreme court of “NKR” was also rejected.
The ECtHR declared the case admissible noting its previous conclusions in respect of Armenia and the “NKR”, where it had found that, at the relevant time, Armenia exercised effective control over the “NKR” and the surrounding territories and that, by doing so, Armenia was under an obligation to secure in that area the rights and freedoms set out in the Convention. Its responsibility under the Convention could not be confined to the acts of its own soldiers or officials operating in the “NKR” but was also engaged by virtue of the acts of the local administration which survived by virtue of Armenian military and other support.
Merits and judgement
As of the merits of the case, the ECtHR noted that while alternative civilian service was available in Armenia, at the material time, to conscientious objectors like the applicant, he was not able to take advantage of that option because he was apparently considered liable for military service in the “NKR” which, unlike Armenia, did not recognise the right to conscientious objection. The Armenian Government argued that the applicant, despite having applied to perform alternative civilian service, had had no guarantee that he would be allowed to perform it owing to the fact that he was an “NKR” citizen. They failed, however, to produce any evidence in support of their allegation that the applicant was an “NKR citizen” and, in fact, it transpires from the case file that the applicant has been an Armenian passport-holder since 2012. The Armenian Government disregarded this fact and, consequently, failed to explain why the applicant, an Armenian national, had been prevented from exercising the right to conscientious objection bestowed on him under section 3 of the Alternative
Service Act and instead had had to face harsh criminal sanctions. Moreover, the authorities appear to have acted to prevent this from happening while the applicant’s application for alternative service was already pending before the relevant Armenian authority.
The ECtHR noted that in any event, even assuming that the applicant was a “citizen” of the “NKR” as argued by the Armenian Government, Armenia was responsible for the acts and omissions of the “NKR” authorities and was under an obligation to secure in that area the rights and freedoms set out in the Convention. Therefore, the Armenian Government’s argument that the “NKR” was a separate entity where the Alternative Service Act did not apply has been artificial for the purposes of the present case.
Consequently, the applicant had no possibility – or was deprived of the possibility – to perform alternative civilian service instead of military service, a circumstance which led eventually to his conviction and imprisonment, and therefore the ECtHR found that there has been a violation of Article 9 of the European Convention of Human Rights and ordered the Armenian government to pay 9,000 Euros for non-pecuniary damage and 1,500 Euros for costs and expenses.