In Dyagilev v Russia  ECHR 212, the applicant, a master’s graduate in philosophy, became liable to be called up for military service in 2014 . In an attempt to find what he described as “a lawful way to avoid military service”, he attended a legal seminar organised by the Committee of Soldiers’ Mothers in St Petersburg and he submitted that his participation in the seminar had finally allowed him to understand his adherence to pacifist philosophy .
He applied to the local military commissariat to be assigned to civilian service instead of compulsory military service ; his application was examined by a military recruitment commission and rejected . The commission decided that “the documents and information provided by the applicant were not sufficiently persuasive for it to conclude that he was a genuine pacifist”  and his subsequent appeals were dismissed by the domestic courts [14-16]. He claimed a violation of his rights under Article 9 ECHR.
The argument about statistics
The Government pointed out, inter alia, that Russian law guaranteed the right of an individual to ask for the replacement of compulsory military service with its civilian alternative  and claimed that between 2014 and 2017 there had been 4,110 applications to be assigned to alternative civilian service, almost 98 per cent of which had been allowed . Mr Dyagilev claimed, however, that from 2014 until 2017 only about 60 per cent of all applications for the replacement of military service lodged in St Petersburg had been granted (325 applications out of 560 . Further, “information provided by the third-party intervener [the Movement of Conscientious Objectors] indicated that approximately 50 per cent of all applications lodged with their assistance were approved in the period in question” .
The majority concluded that the Court was unable to determine whether the discrepancies were due to differences in statistical methods or to calculation errors, but nonetheless concluded that all three approaches confirmed the absence of institutional bias against individuals seeking to do civilian service .
The majority judgment
In a split judgment, the Third Section ECtHR held by four votes to three that there had bee no violation of Article 9 (Lemmens, Dedov and Poláčková JJ, with Serghides J concurring in a separate judgment: Pinto de Albuquerque, Keller and Schembri Orland JJ dissenting).
The majority concluded that the existing mechanism in Russia for the examination of applications for the replacement of compulsory military service with its alternative civilian version provided wide scope for an examination of individual circumstances and encompasses sufficient procedural guarantees for a fair procedure as required by international standards and satisfied the prima facie requirement of independence , that any procedural defects at the commission level were remediable by judicial review  and that the Russian authorities had complied with their positive obligations under Article 9 ECHR to establish an effective and accessible procedure for determining whether an applicant was entitled to conscientious objector status .
The domestic courts had examined Mr Dyagilev’s application de novo and he had been given the opportunity to put forward arguments, to adduce evidence of his beliefs and to call witnesses in his support – which he had chosen not to do . Further, neither party had argued that the judicial proceedings had been tainted by a violation of fair-trial guarantees, nor had there been any indication that the courts had held any presumptions of facts or of law against Mr Dyagilev . The majority, therefore, saw no reason to doubt the domestic authorities’ assessment of the seriousness or otherwise of his convictions . Application dismissed.
The minority judgment
The minority held that the treatment of Mr Dyagilev’s request had been arbitrary [13-19]. Moreover, having chosen to assess Mr Dyagilev’s belief, the national authorities had been “erroneously rigorous” at the initial three tiers of the domestic procedure:
“They ought to have given due consideration to factors such as his willingness to accept the alternative of civilian service, regarding them as significant (albeit perhaps not decisive) evidence of the veracity of his belief” .
Further, they took issue with the efficacy of cassation appeals:
“Since the cassation proceedings are without suspensive effect, they can only determine conscientious objector status after the commission’s decision has taken effect. It follows that individuals seeking this status may be required to perform military service in the interim. If it is subsequently accepted that these individuals are indeed conscientious objectors, then they will have suffered precisely the violation of rights under Article 9 that is meant to be avoided” [27: emphasis added].
They also expressed doubts about the discrepancies in the statistical data on the success or failure of applications for civilian service . In their view, the entire proceedings had been flawed.
The Grand Chamber has ruled previously, in Bayatyan v Armenia  ECHR 1095, that a serious conscientious objection to military service motivated by deeply and genuinely-held religious or other beliefs attracts the guarantees of Article 9 and that whether or not a particular objection is protected depends on the particular circumstances of the individual case. Given the 4:3 split, and given the logical flaw in the operation of the cassation proceedings identified by the minority, it will be interesting to see what the Grand Chamber makes of Mr Dyagilev’s claim.