In a recent ruling, the European Court of Human Rights (ECHR) held that Armenia had violated Article 9 of the European Convention related to “freedom of thought, conscience and religion” by convicting a Jehovah’s Witness for draft evasion. The ruling reversed the court’s previous deliberations on the right to conscientious objection—the right to refuse to bear arms or engage in military service based on moral or religious grounds—and recognized it as a right protected under the article related to “freedom of thought, conscience, and religion.”
Convicted of draft evasion
Eighteen-year-old Vahan Bayatyan was called to military service in 2001. As a Jehovah’s Witness who had attended religious services since 1997 and was baptized in 1999 at the age of 16, Bayatyan believed military service was incompatible with his beliefs. He wrote a letter to the appropriate authorities explaining the situation. He asked them to exempt him from the military, and to instead assign him to alternative civilian service.
The Commission for State and Legal Affairs of the National Assembly rejected his request, stating there was no law on alternative service in Armenia. Bayatyan fit the criteria of military service eligibility, and was bound by the Armenian Constitution and the Military Liability Act to serve in the military.
In October 2002, the Erebuni and Nubarashen District Court of Yerevan found Bayatyan guilty of draft evasion and sentenced him to an 18-month prison term. In November, the prosecutor filed an appeal to secure a heavier sentence:
“I believe that the court imposed an obviously lenient punishment and did not take into consideration the degree of social danger of the crime, the personality of [the applicant], and the clearly unfounded and dangerous reasons for [the applicant’s] refusal of [military] service,” stated the prosecutor. The court agreed, and increased Bayatyan’s sentence to 2.5 years.
In July 2003, Bayatyan was released on parole after having served 10.5 months. His release came a year before the Armenian Alternative Service Act became law on July 1, 2004, which allowed conscientious objectors to opt for an alternative civilian service in place of the military.
Case goes to ECHR
In July 2003, Bayatyan submitted a complaint to the European Court of Human Rights; it was accepted on Dec. 12, 2006. Bayatyan argued that his “right to freedom of thought, conscience, and religion” had been violated.
At the time of his conviction, Armenia’s Criminal Code, specifically Article 75, stated that draft evasion was a punishable offense. According to its constitution and the Military Liability Act, all eligible males had to enter the military. Armenia did not yet have a law on alternative service in place.
However, when Armenia applied for membership in the Council of Europe in 2001, the Parliamentary Assembly of the Council of Europe demanded that Armenia undertake certain steps, including adopting “…within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service has come into force, to perform non-armed military service or alternative civilian service.”
Bayatyan maintained that since Armenia had applied for Council of Europe membership, it had had committed itself to the European Convention on Human Rights and Fundamental Freedoms, including the right to conscientious objection and Article 9—and had agreed to pardon all convicted objectors. Therefore, by sentencing him to prison, the Armenian authorities had violated that legal commitment.
Among the arguments advanced by Armenia’s government was the concern that if members of all 60 registered religious organizations were to opt out of military service, the state’s security would be jeopardized.
An estimated 90 percent of Armenia’s population belongs to the Armenian Apostolic Church, which according to the constitution is the national church of Armenia. Other religious groups include Roman Catholics, Armenian Evangelical Christians, Armenian Uniates (Mekhitarist), Orthodox Christians, Molokans, Seventh-day Adventists, Pentecostals, Baptists, Jehovah’s Witnesses, Yezidis, Mormons, Jews, Sunni Muslims, Shi’ite Muslims, and Baha’is.
In 2007, Armenia had 125,000 active conscripts, and 551,000 potential conscripts. It also had 41 Jehovah’s Witnesses imprisoned. Since 2002, only three members of other religious denominations became conscientious objectors—an extremely low figure, argued Bayatyan.
The court noted that it had no reason to doubt Bayatyan’s motivation in objecting military service, as a member of Jehovah’s Witnesses, a religious group opposed to any form of military service, even unarmed.
Because Armenia had signaled its willingness to adhere to the principles of the European Convention adopted by the Council of Europe, it needed to show “convincing and compelling reasons” tantamount to a “pressing social need” to justify any “interference” in a conscientious objection.
In passing its judgment, ECHR extended the right to conscientious objection to individuals of all faiths, including atheists and agnostics—or when “the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion, and importance to attract the guarantees of Article 9.”
On July 7, 2011, the Court’s Grand Chamber publicized its final ruling, 16-1, that Armenia’s treatment of Bayatyan violated Article 9.
Under Article 41 (“just satisfaction”), the court ordered Armenia to pay Bayatyan 10,000 euros for damages, and another 10,000 euros for costs and expenses. In its concluding remarks, the court stated that in a democracy, although individual interests needed to be at times sacrificed, it did not mean that the views of the majority must always triumph.
According to local and international organizations, Jehovah’s Witnesses face discrimination in Armenia, in public and in the media. In 2009, an unidentified suspect attempted to set one of their halls on fire; later that year, unidentified suspects spray-painted hateful slurs on the walls of the same hall.
“A balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position,” noted the court. “Thus, respect on the part of the State towards the beliefs of a minority religious group like the applicant’s by providing them with the opportunity to serve society as dictated by their conscience might, far from creating unjust inequalities or discrimination as claimed by the Government, rather ensure cohesive and stable pluralism and promote religious harmony and tolerance in society.”
The Grand Chamber was comprised of 17 judges under the presidency of Jean-Paul Costa (France). Judge Alvina Gyulumyan (Armenia) was the sole dissenter to the ruling. The final hearing took place in the Human Rights Building in Strasbourg, France, on July 7.
“[The judgment] is…directly relevant to the current situation in Azerbaijan and Turkey within the Council of Europe and has implications for Belarus if it aspires to join the Council of Europe. In the longer term, the effects will be felt world-wide,” wrote Derek Brett of Conscience and Peace Tax International (CPTI) for Forum 18 News Service, an organization that advocates the implementation of Article 18 of the Universal Declaration of Human Rights, focusing on religious freedom. CPTI, along with Amnesty International, and a few other organizations had submitted written statements in support of Bayatyan.
The Armenian government says that today conscientious objectors are convicted only if they refuse to perform alternative service.
Around 70 Jehovah’s Witnesses are reportedly imprisoned in Armenia for refusing the alternative service option. “This ‘alternative service’ is not purely civilian in nature, and compared with military service is of a discriminatory duration. Legislation brought forward by the government still does not seem to deal with these inadequacies,” observed Brett.
Almost all member-states of the Council of Europe have recognized the right to conscientious objection and implemented laws to that regard, the earliest one being the U.K. in 1916. Among Armenia’s neighbors, Georgia adopted and implemented laws on the right to conscientious objection in 1997. Azerbaijan recognized the right to conscientious objection in its constitution in 1995, although according to ECHR it is yet to implement it. Turkey does not recognize that right.