ECHR case involving JW

[Shawnster]

I do graphic design work for a human rights organization. In putting together their latest publication, I found this report from the European Court of Human Rights:

Bayatyan v Armenia

European Court of Human Rights: Judgment dated 7 July 2011

Jehovah’s Witness – compulsory military service – no alternative under domestic law for conscientious objectors – whether domestic measures within State’s margin of appreciation – Article 9 (freedom of thought, conscience and religion)

Facts

The Applicant, a Jehovah’s Witness, had temporarily moved away from home to avoid compulsory military service. On his return and concerned about imminent criminal proceedings, the Applicant and his defence counsel visited the District Prosecutor’s Office on numerous occasions to inquire about his situation. Although the investigator instituted criminal proceedings against the Applicant, the Applicant alleged that he refused to bring charges against him until further investigations had been carried out. The Applicant lodged a complaint to the General Prosecutor’s Office, his concern being that he would lose the benefit of an amnesty law which was shortly due to expire.

Despite the Applicant having returned home and visited the investigator on several occasions, in October 2001, the investigator issued five decisions against the Applicant, including bringing a charge of draft evasion against the Applicant, requesting the court to authorise the Applicant’s detention on remand and monitoring of his correspondence and suspending proceedings until the Applicant had been found. The District Court authorised the monitoring of the Applicant’s correspondence and his detention on remand although neither the Applicant nor his family were notified of these decisions.

The Applicant was arrested in September 2002. Armenia ratified the Convention on 26 April 2002. The Applicant was subsequently convicted but released having served ten and a half months of his sentence.

Complaints

The Applicant complained under Article 9 that his conviction violated his right to freedom of thought, conscience and religion.

Held

The Court found a violation of Article 9. After concluding that Article 9 applied to the Applicant’s case, the Court asked whether the interference with the Applicant’s rights to freedom of thought, conscience and religion was permitted under Article 9, namely whether it was prescribed by law, pursued one or more of the legitimate aims set out in Article 9(2) and was necessary in a democratic society.

The Court observed that almost all Member States which had had or still had compulsory military service have introduced alternatives in order to cater for conscientious objectors. It therefore considered that a State Party which had not introduced such an alternative had only a limited margin of appreciation and must prove a ‘pressing social need’ for the measure. It considered that the system in Armenia at the material time made no allowance for conscientious objectors and therefore failed to strike a fair balance between the interests of society as a whole and those of the Applicant. This was particularly the case in light of the ‘overwhelming majority’ of Member States who had introduced alterative measures for conscientious objectors and of the fact that the Applicant was actually willing to perform an alternative service.

Finally, after reiterating the principles of pluralism, tolerance and broadmindedness as the hallmarks of a ‘democratic society’, the Court concluded that the measure directly conflicted with the official policy of reform and legislative changes being implemented in Armenia at the time in pursuance of its international commitment. It therefore did not serve a pressing social need.

Commentary

The Court in this case had regard to whether there is a common state practice amongst the Member States in order to decide on the scope of the margin of appreciation which should be granted to the respondent State. As the overwhelming majority of Members had introduced alternative measures for conscientious objectors, a narrow margin of appreciation was afforded to Azerbaijan.