In Adyan and Ors v Armenia [2017] ECHR 882, four Jehovah’s Witnesses had been convicted and imprisoned for refusing to perform either military or alternative civilian service.
Background
In May and June 2011 they were called up for military service but refused to appear either for military or for alternative civilian service under the terms of the Alternative Service Act, declaring their opposition based on their religious beliefs. Furthermore, even though domestic law provided for alternative service, they claimed that it was not of a genuinely civilian nature because it was supervised by the military.
They pursued the same arguments in the ensuing proceedings for draft evasion but they were all convicted in July/November 2011 and sentenced to two years and six months in prison. They appealed, further arguing that the alternative labour service programme was essentially under military control and supervision in as far as it concerned transfers, sanctions and orders. They also pointed out that they were required to wear a uniform which resembled that of the military and to be at their place of assignment 24 hours a day. Moreover, alternative service was punitive in nature as it lasted 42 months (rather than the 24 months for military service). The Court of Appeal subsequently upheld their convictions, finding that, although the labour service available contained a few formal elements of military supervision – such as the provision of clothing, food and financial means, as well as other organisational work – it was still civilian in nature. Their further appeals were ultimately declared inadmissible.
They were released from prison in October 2013 following a general amnesty after having served between 26 and 27 months of their sentences. Three out of the four spent periods in pre-trial detention which formed part of their sentences.
Relying on Article 9 (freedom of thought, conscience, and religion), they argued before the First Section ECtHR that it had not been necessary to prosecute and imprison them, especially given that the law on alternative service had been amended in 2013 to remove all military control and supervision and to place the programme under purely civilian administration. Further relying on Article 5 §1 (right to liberty and security), three of the four applicants alleged that the decisions to detain them pending the criminal proceedings against them had not been sufficiently justified.
The judgment
According to its settled case-law, the Court gave states parties a certain margin of appreciation in deciding whether and to what extent an interference under Article 9 was necessary. The Court had made clear, however, that a state that had not introduced alternatives to compulsory military service in order to accommodate individual conscience enjoyed only a limited margin of appreciation and had to advance compelling reasons to justify any such interference. In particular, following Bayatyan v Armenia [2011] ECHR 1095, a state in that position had to demonstrate a “pressing social need” [65]; moreover, a system that imposed an obligation with potentially serious implications for conscientious objectors – such as military service without allowance for individual conscience and belief – would fail to strike a fair balance between the interests of society as a whole and those of the individual [66].
In the present case, in contrast to the situation in Bayatyan, (in which Armenia had been held in breach of Article 9 but which related to events before the Alternative Service Act was passed), the applicants were able to refuse compulsory military service for reasons of conscience and to perform “alternative labour service” instead. But that alone did not mean that the authorities had discharged their obligations under Article 9. The Court had also to verify that appropriate allowances had been made for individual conscience and beliefs. Though states parties enjoyed a certain margin of appreciation to organise and implement their systems of alternative service, the right to conscientious objection guaranteed by Article 9 would be illusory if a state were allowed to organise and implement an alternative that failed to offer – whether in law or in practice – an option that was of a genuinely civilian nature and not deterrent or punitive in character [67].
In the present case, it was not in dispute that the work performed by alternative labour servicemen was of a civilian nature: they were assigned to various civilian institutions such as orphanages, retirement homes, mental health institutions, institutions for disabled persons and hospitals, and performed the functions of an orderly. However, the nature of the work performed was only one of the factors to be taken into account: such matters as authority, control, applicable rules, and appearances might also be important [68].
The military authorities were actively involved in the supervision of the service, carrying out regular spot-checks at the relevant civilian institutions on the orders of the Head of the General Staff of the Armed Forces for the purpose of “supervising the work discipline of alternative labour servicemen”. In the event of the unauthorised absence of an alternative serviceman, the military was required to take measures to find him. The military could also order the transfer or relocation of an alternative labour serviceman. Furthermore, certain aspects of the alternative labour service were organised in accordance with the Internal Rules of Service in the Armed Forces:
“The Court further refers to the findings of the European Commission against Racism and Intolerance, which the Government did not explicitly contest, according to which the heads of the civilian institutions where alternative labour service was performed received instructions about the conditions and modalities of the service from the military, while conscientious objectors were sent to military hospitals for medical treatment and received assignments and changes of assignments determined by the military” [69].
The alternative labour service was not “hierarchically and institutionally sufficiently separated from the military system at the material time” and alternative civilian servicemen were required to wear a uniform and to stay at their place of service. So, all things considered, the alternative available to the applicants had not been genuinely civilian [69]. As to whether the alternative labour service could be perceived as deterrent or punitive in character, armed military service was for twenty-four months while the civilian alternative was significantly longer at forty-two. In the Court’s opinion, that must have had a deterrent effect and could be said to have had a punitive element [70].
The Government had admitted that the system of alternative civilian labour service as provided for by the Alternative Service Act had shortcomings. The Armenian Parliament had been even more critical, pointing in particular to the military supervision and its duration. The Act had eventually been amended in 2013 to meet those criticisms [71].
The Court concluded that the system of alternative civilian service had not struck a fair balance between the interests of society as a whole and those of the applicants, as required by Article 9. Therefore, their convictions had not been “necessary in a democratic society” within the meaning of that provision [72]. The Court also dismissed the Government’s objection that the applicants had not exhausted domestic remedies [73]. There had accordingly been a violation of Article 9 [79].