CASE OF ADYAN AND OTHERS v. ARMENIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of conscience;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
6. Mr Adyan (“the first applicant”) was born in 1991, while Mr Avetisyan, Mr Khachatryan and Mr Margaryan (“the second, third and fourth applicants”) were born in 1993. The first and second applicants live in Yerevan, while the third and fourth applicants live in Tsaghkavan and Kapan respectively. 7. The applicants are four Jehovah’s Witnesses who were found to be fit for military service. 8. In May and June 2011 the applicants were called up for military service. They failed to appear, and instead addressed letters to the local military commissariat (զինվորական կոմիսարիատ) and the regional prosecutor’s office, refusing to perform either military or alternative service. They stated that they were Jehovah’s Witnesses and that, having studied the Alternative Service Act, they had come to the conclusion that, by European standards, the service proposed was not of a genuinely civilian nature since it was supervised by the military authorities. Their conscience did not allow them to work directly or indirectly for the military system. The alternative labour service was known to be organised and supervised by the military authorities because the alternative labour serviceman’s record booklet was marked “Armed Forces of Armenia”, and alternative servicemen were subject to military discipline and penalties and had to register with the military subdivisions of the Armed Forces of Armenia. Furthermore, the law required that they remain at their place of service around the clock, seven days a week, which was akin to house arrest and was unacceptable to the applicants. The requirement to perform military service or the available alternative service violated their rights guaranteed by, inter alia, Article 9 of the European Convention on Human Rights. For the reasons stated above, their conscience did not allow them to perform the alternative service available in Armenia. The applicants added that they were willing to perform alternative service as long as it was not in any way connected with the military authorities and did not violate their religious beliefs. 9. On 15 June 2011 charges were brought against the second applicant under Article 327 § 1 of the Criminal Code (evasion of regular conscription for military or alternative service). 10. On 6 July 2011 the first and fourth applicants were arrested. 11. On 7 July 2011 the same charges were brought against the first and fourth applicants. Finding the investigator’s applications for their detention substantiated, the Syunik Regional Court decided to detain them. 12. On 28 July 2011 the Criminal Court of Appeal dismissed appeals lodged by the first and fourth applicants against the detention orders, finding, inter alia, that as the alleged offence carried a sentence of more than one year’s imprisonment, that increased the probability that the first and fourth applicants would commit a new offence or evade punishment if they remained at large. 13. On 27 July 2011 the same charges were brought against the third applicant and the Tavush Regional Court decided to detain him at the investigator’s request, finding that there was a reasonable suspicion that he had committed the offence with which he was charged. 14. On an unspecified date his criminal case was sent to court. 15. On 19 August 2011 the Tavush Regional Court decided to set the case down for trial, finding that the “detention was to remain unchanged”. 16. On 24 August 2011 the Criminal Court of Appeal examined an appeal lodged by the third applicant against the detention order of 27 July 2011 and decided to dismiss it, finding, inter alia, that the offence with which he was charged carried a sentence of more than one year’s imprisonment, which increased the probability that he would commit a new offence or evade punishment if he remained at large. 17. In the course of the proceedings before their respective trial courts, the applicants submitted that their opposition to military and alternative service was based on their religious beliefs. The alternative service provided for under domestic law was not of a genuinely civilian nature, as it was supervised by the military authorities. The right to conscientious objection was protected by, inter alia, Article 9 of the Convention. The applicants were willing to perform alternative service as long as it was not supervised by the military and was of a genuinely civilian nature. 18. On 19 July 2011 the Kotayk Regional Court found the second applicant guilty as charged and sentenced him to two years and six months in prison. He was taken into custody on the same day. 19. On 27 July 2011 the Syunik Regional Court imposed similar sentences on the first and fourth applicants. 20. On 25 November 2011 the Tavush Regional Court imposed a similar sentence on the third applicant. 21. The applicants lodged appeals against their convictions, arguing that they violated the requirements of Article 9 of the Convention. Their opposition to the alternative service available in Armenia was based on their religious beliefs, as that service was not of a genuinely civilian nature and failed to comply with European standards. It was organised and supervised by the military authorities (section 14 of the Alternative Service Act (see paragraph 28 below)) and was equivalent to non-armed military service, whereas their conscience did not allow them to perform any service supervised by the military authorities. Furthermore, section 17(3) of the Act authorised a military authority to order the transfer of an alternative labour serviceman to another institution, while certain aspects of the service were organised in accordance with military rules (section 18(2) of the Act). Alternative labour servicemen were also required to wear a uniform that resembled a military uniform and to follow orders, and were not allowed to leave their place of service without authorisation. The cover of the alternative labour serviceman’s record booklet (այլընտրանքային աշխատանքային ծառայողի գրքույկ) bore the coat of arms and the words “The Armed Forces of Armenia”, and the monthly allowance paid was the same as that of military servicemen. Moreover, alternative service was punitive in nature as it lasted forty-two months and alternative servicemen were required to stay at their place of service around the clock. They reiterated their readiness to perform a genuinely civilian alternative service and argued that, in the absence of alternative service that complied with European standards and was of a truly civilian nature, their sentences did not pursue a pressing social need and were not necessary in a democratic society. 22. On 2 December 2011 the Criminal Court of Appeal upheld the judgments of the Regional Courts in the cases of the first and second applicants. In the first applicant’s case, the Court of Appeal found as follows: “Having examined the arguments of the defence that the alternative labour service in Armenia does not comply with European standards, is of a military nature and is supervised by the military, the Court of Appeal finds that [the State] ... is taking appropriate measures in respect of the obligations assumed before the Council of Europe as regards, in particular, the enactment and continuous improvement of the legislation concerning alternative service. The Court of Appeal finds it necessary to point out that the Alternative Service Act, the [relevant] Government decrees and [other executive orders] are based on the Armenian Constitution and must therefore be applied in the present case with the following considerations. [Citation of sections 2 and 3(1) of the Act (see paragraph 28 below)] It follows from the above-mentioned provisions that [the State] has made a clear distinction between alternative military service and alternative labour service, and has guaranteed by law the civilian nature of the latter. [Citation of sections 17 and 18(3) of the Act (see paragraph 28 below)] Based on an analysis of the above-mentioned provisions, the Court of Appeal finds it necessary to point out that the fact that the head of the institution [where alternative service is performed] notifies [the local military commissariat] regarding the alternative labour service to be performed by the serviceman, the fact that the serviceman can be transferred to another institution or place and the fact that alternative labour servicemen are discharged from service to the reserve and are registered in the reserve in accordance with a procedure prescribed by law, are not sufficient to conclude that the alternative labour service in Armenia is of a military nature, since ... the type, procedures and conditions of such labour are determined by the heads of the relevant institutions without any interference by the military authorities or their representatives. Furthermore, it is the head of [the relevant] institution who is responsible for the organisation and implementation of the alternative labour service and not the subdivisions of the Armed Forces of Armenia. The argument put forward by the defence that the alternative labour service is supervised by a public authority in the field of defence authorised by the Government of Armenia similarly does not suggest that there is no alternative labour service in Armenia. It must be noted that in reality, servicemen perform the labour service outside the Armed Forces of Armenia and it does not contain elements of military service. The Court of Appeal also finds it necessary to note that an analysis of the Alternative Service Act shows that the specifics of the legal status of alternative labour servicemen are set out in the said Act and the labour legislation of Armenia and they are subjects ... of labour rather than military relations. The preceding conclusion is evidenced also by a number of other provisions of the Act, in particular, the fact that alternative labour servicemen are subordinate only to the heads of the relevant civilian institutions, are obliged to follow only their orders and instructions, and must abide by the internal disciplinary rules of such institutions, while questions relating to the social security of servicemen and their family members are regulated by the legislation on State pensions rather than military laws (sections 19 and 20). It must be noted that Government Decree no. 940-N of 25 June 2004 established the list of institutions where alternative service is performed and the form and the manner of wearing the alternative serviceman’s uniform. Paragraph 2(b) of the Decree stipulates that ‘alternative labour servicemen perform their service in the institutions under the Ministry of Health and the Ministry of Labour and Social Affairs’. Pursuant to [Annex 1] to the Decree, ‘the tasks performed by alternative labour servicemen in the said bodies are those of an orderly’. The Government have entrusted the ministers of the bodies in question, as well as the Minister of Defence, with certain responsibilities, such as the provision of clothing, food and financial means to servicemen and other organisational work (paragraph 3 of the Decree). The fact that the Minister of Defence is also involved in the organisation of the alternative service does not suggest that the labour service transforms into military service, since, firstly, the Minister of Defence and certain subdivisions of the Armed Forces are called upon to participate in the organisation of the alternative military service. As regards the fact that the military authorities carry out supervision of labour servicemen together with the heads of the relevant institutions, the Court of Appeal considers that this still does not change the nature of the service performed. Moreover, as already noted above, the type, procedures and conditions of the civilian labour are determined and may be changed only by the head of the relevant institution. ... It must be noted that performing the tasks of an orderly at the relevant medical institutions of Armenia is not only not demeaning, but on the contrary is humanitarian, serves the interests of society and is aimed at preservation of human health and life. The argument put forward by the defence that the alternative labour service is punitive in nature is also unsubstantiated. ... In the light of the above, the Court of Appeal, based on the concrete facts of the case, namely that [the first applicant] has categorically refused to be conscripted to perform alternative labour service, concludes that he has been found criminally liable and sentenced in a justified and fair manner for such actions, and this fact does not contradict ... the case-law of the European Court regarding Article 9 of the Convention.” In the second applicant’s case, the Court of Appeal found that his conviction had been lawful, well-founded and reasoned. 23. On 9 December 2011 and 6 March 2012 the Criminal Court of Appeal adopted judgments in the cases of the third and fourth applicants similar to its judgment in the case of the first applicant. 24. The applicants lodged appeals on points of law, raising the same arguments as in their appeals. 25. On 7, 8 and 17 February and 7 May 2012 the Court of Cassation declared the applicants’ appeals inadmissible for lack of merit. 26. On 8 and 9 October 2013 the applicants were released from prison following a general amnesty, after having served between twenty-six and twenty-seven months of their sentences.