In Mushfig Mammadov and Others v Azerbaijan  ECHR Application No 14604/08 [in French], the five applicants were Jehovah’s Witnesses. They told their local military recruitment offices that they wanted to be exempted from compulsory service on grounds of conscience and, in the case of most of them, to perform alternative civilian service instead. They were all prosecuted under Article 321.1 of the Penal Code and sentenced to imprisonment and their appeals were dismissed. Mr Mammadov was prosecuted twice.
Relying on Article 9 (conscience, thought and religion), they complained before the European Court of Human rights about their convictions for having refused to serve in the army. Mr Mammmadov also argued that his second conviction was in breach of Article 4 of Protocol No 7 (right not to be tried or punished twice).
The Court observed that their objection to military service had been based on their sincere religious convictions which conflicted with their military service obligations. Freedom of thought, conscience and religion was one of the cornerstones of a “democratic society” within the meaning of the Convention and it presupposed, inter alia, the liberty to adhere – or not to adhere – to a religion and the right to decide whether or not to practise it. With regard to conscientious objection to compulsory military service, the Court had concluded in earlier cases that there was a positive obligation on states parties to offer those claiming the status of conscientious objector an effective procedure to establish whether or not that claim was genuine for the purposes of the interests protected by Article 9 . A system that did not provide for any alternative service and no effective procedure to access it could not be said to have struck a fair balance between the interests of society as a whole and those of conscientious objectors .
States parties had some margin of appreciation to assess the existence and extent of the necessity of interference and the Court’s task was to decide whether or not the measures taken at the domestic level were justified in principle and proportionate. However, when Azerbaijan had acceded to the Council of Europe it had undertaken to enact within two years of its accession a law on alternative service in conformity with European standards – and Article 76 § 2 of the Azerbaijani Constitution authorised persons whose convictions were incompatible with the performance of active military service to carry out alternative service in place of that compulsory service. Nevertheless, Azerbaijan had still not made any provision for an alternative, non-military service; and the prosecutions and convictions of the applicants had stemmed from the fact that there was no alternative service system for conscientious objectors . It therefore amounted to an interference that had not been “necessary in a democratic society” .
There had therefore been a violation of Article 9, though Mr Mammadov’s complaint under Article 4 of Protocol No. 7 was out of time and had to be dismissed.