The ECHR judgment of 12 October 2017 in the case of Adyan and Others v. Armenia (complaint No. 75604/11).
In 2011, the applicants were assisted in preparing the аpplication. The аpplication was subsequently communicated to Armenia.
In the case, the applicants' complaint on their conviction for evading conscription to military and alternative service on religious convictions was successfully considered. In the case there was a violation of the requirements of Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Four applicants are members of the religious organization "Jehovah's Witnesses" who refuse to perform military service on conviction. In July 2011, they were convicted of evading conscription for military and alternative service and sentenced to two and a half years in prison. They claimed in their defense that the alternative service provided by the law of the country was not of a civil nature, as it was controlled by the military authorities and had a punitive nature, as it lasted 42 months compared to 24 months of military service.
In the conventional proceedings, the applicants complained of a violation of their rights guaranteed by Article 9 of the Convention (freedom of thought, conscience and religion).
ISSUES OF LAW
Concerning compliance with article 9 of the Convention. The refusal of applicants to conscript to military and alternative service was a manifestation of their religious views, and their conviction for evading conscription amounted, therefore, to interference in their freedom to profess religion. In contrast to the judgment of the Grand Chamber of the European Court in the case of Bayatyan v. Armenia (July 7, 2011, complaint No. 23459/03 (Precedents of the European Court of Human Rights: 2016. N 5)) the applicants in in the present case they had the opportunity to refuse compulsory military service on conscience grounds and instead act for "alternative labor service" in accordance with articles 2 and 3 of the Law on Alternative Service, since such a service was introduced in Armenia since 2004 and was carried out outside the Armed Forces Armenia.
However, this alone is not sufficient to conclude that the authorities have fulfilled their obligations under Article 9 of the Convention. The Court must also ascertain that these assumptions were adequate, taking into account the right of conscience and the person's convictions. Although States have certain limits on how to organize and operate their alternative service systems, the right to refuse conscientious objection guaranteed by Article 9 of the Convention would be illusory if the state were allowed to create and implement its alternative service system in such a way that it did not offer law, or in practice, an alternative to a genuinely civil service that would not be restraining or punitive in nature.
(a) Was the service truly civil? The Court considered that the alternative employment service available to the applicants during the period relevant to the circumstances of the case was not genuinely civil in nature. Although it was not contested that it was civil in nature (employees were sent as cleaners to various civilian institutions, such as shelters and nursing homes), other factors, such as power, control, applicable rules and signs, should be taken into account when resolving the issue whether the alternative service had a truly civilian character. In the applicants' case, the Court notes that the military authorities actively participated in the supervision of their service and had the authority to influence it, requiring their transfer to another institution or duty station. At the same time, certain aspects of the alternative labor service were organized in accordance with military regulations, and the alternative service was not sufficiently separated hierarchically and institutionally from military service in the period relevant to the circumstances of the case, and, finally, as regards the characteristics, employees who underwent alternative civilian service , were required to wear uniforms and be at the duty station.
(b) Could the alternative labor service be perceived as deterrent or punitive in nature? The alternative labor service was to last 42 months instead of 24 months for regular military service. Its duration was thus much greater than the one and a half term of the armed service established by the European Committee on Social Rights (Conclusion XIX-1 of 24 October 2008 concerning the observance by Greece of article 1, paragraph 2, of the European Social Charter (the right to work: effective protection of the worker's right to earn a living in a freely chosen profession)). Such a significant difference in the length of service could have a deterrent effect and contain a punitive element.
Thus, during the period relevant to the circumstances of the case, the authorities failed to provide adequate opportunities for the needs of the applicants' conscience and convictions to ensure that the alternative service system established an equitable balance between the interests of the society as a whole and the interests of the applicants.
There has been a violation of Article 9 of the Convention (unanimously).
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 12,000 in respect of non-pecuniary damage.