CASE OF BAYATYAN v. ARMENIA
No violation of Art. 9
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
7. The applicant was born in 1983 and lives in Yerevan. 8. The applicant is a Jehovah's Witness. From 1997 he attended various Jehovah's Witnesses religious services and he was baptised on 18 September 1999 at the age of 16. 9. On 16 January 2000 the applicant was registered as a person liable for military service with the Erebuni District Military Commissariat (Էրեբունի համայնքի զինվորական կոմիսարիատ). 10. On 16 January 2001 the applicant, at the age of 17, was called to undergo a medical examination, following which he was declared fit for military service. The applicant became eligible for military service during the 2001 spring draft (April-June). 11. On 1 April 2001, at the outset of the draft, the applicant sent identical letters to the General Prosecutor of Armenia (ՀՀ գլխավոր դատախազ), the Military Commissioner of Armenia (ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար) and the Human Rights Commission of the National Assembly (ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով), with the following statement: “I, Vahan Bayatyan, born in 1983, inform you that I have studied the Bible since 1996 and have trained my conscience by the Bible in harmony with the words of Isaiah 2:4, and consciously refuse to perform military service. At the same time I inform you that I am ready to perform alternative civilian service in place of military service.” 12. In early May a summons to appear for military service on 15 May 2001 was delivered to the applicant's home. On 14 May 2001 an officer with the Erebuni Military Commissariat telephoned the applicant's home and asked his mother whether the applicant was aware that he had been called to appear at the Commissariat to commence military service the following day. That same evening, the applicant temporarily moved away from his home in fear of being forcefully taken to the military. 13. On 15 and 16 May 2001 officials from the Commissariat telephoned the applicant's mother, demanding to know his whereabouts. They threatened to take him to the military by force if he did not come voluntarily. On 17 May 2001, early in the morning, the officials came to the applicant's home. His parents were asleep and did not open the door. On the same date, the applicant's mother went to the Commissariat where she stated that the applicant had left home and she did not know when he would come back. The applicant submits that the Commissariat made no further efforts to contact his family. 14. On 29 May 2001 the Parliamentary Commission for State and Legal Affairs (ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով) sent a reply to the applicant's letter of 1 April 2001, stating: “In connection with your declaration, ... we inform you that in accordance with the legislation of the Republic of Armenia every citizen ... is obliged to serve in the Armenian army. Since no law has yet been adopted in Armenia on alternative service, you must submit to current law and serve in the Armenian army.” 15. In early to mid-June 2001 the applicant returned home, where he lived until his arrest in September 2002. 16. On 12 June 2001 the Parliament declared a general amnesty which applied only to those who had committed crimes before 11 June 2001 and was subject to implementation until 13 September 2001. 17. On 26 June 2001 the Erebuni Military Commissar (Էրեբունի համայնքի զինկոմիսար) sent notice to the Erebuni District Prosecutor (Էրեբունի համայնքի դատախազ) that the applicant had failed to appear for military service on 15 May 2001 and was intentionally avoiding service in the army. 18. During July and on 1 August 2001 the applicant, together with his father and his defence counsel, went on several occasions to the District Prosecutor's Office to inquire with the relevant investigator about his situation and to discuss the forthcoming trial. 19. On 1 August 2001 the investigator instituted criminal proceedings on account of the applicant's draft evasion. According to the applicant, the superior prosecutor refused to bring charges against him until further investigation had been carried out. On 8 August 2001 the applicant, who apparently wanted to benefit from the above amnesty act, complained about this to the General Prosecutor's Office (ՀՀ գլխավոր դատախազություն). He received no reply to this complaint. 20. On 1 October 2001 the investigator issued five orders in respect of the applicant: (1) to bring a charge of draft evasion against the applicant; (2) to apply to court for authorisation of the applicant's detention on remand; (3) to declare the applicant a fugitive and institute a search for him; (4) to apply to court for authorisation to monitor the applicant's correspondence; and (5) to suspend the proceedings until the applicant had been found. This last order stated: “... since, having undertaken investigative and operative search measures, the attempts to find the wanted [applicant] within two months ... have been unsuccessful and his whereabouts are unknown, ... [it is necessary] to suspend the investigation ... and ... to activate operative search measures to find the accused.” 21. Neither the applicant nor his family were notified of these orders, despite the fact that since mid-June 2001 he had been living at the family home and that he had met with the investigator on several occasions in July-August 2001. 22. On 2 October 2001 the Erebuni and Nubarashen District Court of Yerevan (Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան) authorised the monitoring of the applicant's correspondence and his detention on remand. Neither the applicant nor his family were notified about these decisions, and the investigating authority made no attempts to contact them until his arrest in September 2002. 23. On 26 April 2002 the Convention entered into force in respect of Armenia. 24. On 4 September 2002, while the applicant was at work, two police officers came to his family home, informing his parents that he was on the wanted list and inquiring about his whereabouts. 25. On 5 September 2002 the police officers returned and accompanied the applicant to a local police station, where they drew up a record of the applicant's voluntary surrender which stated that the applicant, having found out that he was on the wanted list, decided to appear at the police station. On the same date, the applicant was placed in the Nubarashen detention facility. 26. On 9 September 2002 the investigating authority resumed the criminal proceedings against the applicant. 27. On 11 September 2002 the applicant was presented with the 1 October 2001 charge for the first time. During his questioning on the same date the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead. 28. On the same date, the applicant and his defence counsel were granted access to the case file. The indictment was finalised on 18 September 2002 and approved by the prosecutor on 23 September 2002. 29. On 22 October 2002 the applicant's trial commenced in the Erebuni and Nubarashen District Court of Yerevan. The trial was adjourned until 28 October 2002 because the applicant had not been served with a copy of the indictment. 30. On 28 October 2002, at the court hearing, the applicant made the same submissions as during his questioning. On the same date, the Erebuni and Nubarashen District Court found the applicant guilty as charged and sentenced him to one year and six months in prison. 31. On 29 November 2002 the prosecutor lodged an appeal against this judgment, seeking a harsher punishment. The appeal stated: “The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as one of Jehovah's Witnesses his faith did not permit him to serve in the armed forces of Armenia. [The applicant] is physically fit and is not employed. I believe that the court issued an obviously mild 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.” 32. On 19 December 2002 the applicant's defence counsel lodged objections in reply to the prosecutor's appeal, in which he argued that the judgment imposed was in violation of the applicant's freedom of conscience and religion guaranteed by Article 23 of the Constitution, Article 9 of the Convention and other international instruments. He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience. 33. On 24 December 2002, in the proceedings before the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան), the prosecutor argued, inter alia, that a harsher sentence should be imposed also because of the fact that the applicant had hidden from the investigation. The applicant submits that during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service: both the prosecutor and one of the judges offered to terminate his case if he dropped his objection and went to perform his military duty. 34. On the same date, the Court of Appeal decided to grant the prosecutor's appeal and increased the applicant's sentence to two and a half years, stating that: “The court of first instance, when sentencing [the applicant], took into account that [the applicant] had committed not a grave crime, that he was young, he had not been guilt-stained in the past, that he had confessed his guilt, had actively assisted in the disclosure of the crime and had sincerely repented. However, in the course of the appeal proceedings it was established that not only did [the applicant] not accept his guilt, nor did he repent of having committed the crime, not only did he not assist in the disclosure of the crime, but he hid from preliminary investigation and his whereabouts were unknown, for which reason a search for him was initiated. Based on these circumstances, as well as taking into account the nature, motives and degree of social danger of the crime, the Court of Appeal considers that the prosecutor's appeal must be granted, and a harsher and adequate punishment must be imposed on [the applicant].” 35. On an unspecified date, the applicant's defence counsel brought a cassation appeal against this judgment, in which he raised arguments similar to the ones made in his objections of 19 December 2002. He reiterated the applicant's willingness to perform alternative civilian service and submitted that, instead of spending two and a half years in prison, the applicant could have done socially useful work. According to him, such a possibility was envisaged under Section 12 of the Military Liability Act («Զինապարտության մասին» ՀՀ օրենք). Furthermore, he argued that the principle of alternative service was enshrined in Section 19 of the Freedom of Conscience and Religious Organisations Act («Խղճի ազատության և կրոնական կազմակերպությունների մասին» ՀՀ օրենք), and the absence of appropriate implementation mechanisms could not be blamed on the applicant. 36. On 24 January 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld the judgment of the Court of Appeal, finding, inter alia, that the rights guaranteed under Article 23 of the Constitution were subject to limitations under its Article 44 such as in the interests of State security, public safety and the protection of public order. Similar limitations were envisaged also by Article 9 § 2 of the Convention. 37. On 22 July 2003 the applicant was released on parole after having served about ten and a half months of his sentence. 38. The relevant provisions of the Constitution read as follows: “Everyone has the right to freedom of thought, conscience and religion.” “The fundamental rights and freedoms of man and citizen enshrined in Articles 23-27 of the Constitution can be restricted only by law if necessary for the protection of State security and public safety, the public order, the health and morals of society, and the rights, freedoms, honour and good name of others.” “Every citizen is obliged to participate in the defence of the Republic of Armenia in accordance with a procedure prescribed by law.” 39. The relevant provisions of the Criminal Code read as follows: “Evasion of a regular call-up to active military service is punishable by imprisonment for a period of one to three years.” 40. The relevant provisions of the Military Liability Act read as follows: “1. Male conscripts and officers of the first category reserve whose age is between 18 and 27 [and] who have been found physically fit for military service in peacetime shall be drafted to compulsory military service.” “1. [A citizen] can be exempted from compulsory military service: (a) if the national recruiting commission recognises him to be unfit for military service on account of poor health, striking him off the military register; (b) if his father (mother) or brother (sister) perished while performing the duty of defending Armenia or in [the Armenian] armed forces and other troops, and he is the only male child in a family; (c) by a decree of the Government; (d) if he has performed compulsory military service in foreign armed forces before acquiring Armenian citizenship; or (e) he has a science degree (candidate of science or doctor of science) and is engaged in specialised, scientific or educational activities.” “2. In specific cases the Government defines categories of citizens and particular individuals to be granted deferral from conscription to compulsory military service.” 41. The relevant provisions of the Freedom of Conscience and Religious Organisations Act read as follows: “All civic obligations envisaged by law apply equally to believing members of religious organisations as they do to other citizens. In specific cases of contradiction between civic obligations and religious convictions, the matter of discharging one's civic obligations can be resolved by means of an alternative principle, in the procedure prescribed by law, by mutual agreement between the relevant State authority and the given religious organisation.” 42. The relevant provisions of the Act, with their subsequent amendments introduced on 22 November 2004, read as follows: “1. Alternative service, within the meaning of this Act, is the service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions. 2. Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty, and the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely] the labour service performed outside the armed forces of Armenia. 3. The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive, depreciatory and degrading nature.” “1. An Armenian citizen, whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, can perform alternative service.” 43. The relevant extract from the Opinion stipulates: “13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... iv. human rights: ... d. to adopt, 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.” 44. The relevant extract from the Recommendation provides: “2. 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. 3. Most Council of Europe member states have introduced the right of conscientious objection into their constitutions or legislation. There are only five members states where this right is not recognised.” 45. The relevant provisions of the Charter read as follows: “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.”