Background

In Avanesyan v Armenia [2021] ECHR 659, Mr Avanesyan was born in Askeran in the unrecognised “Nagorno Karabakh Republic” and at the material time lived there. He was an Armenian national and had held an Armenian passport since 2012 [5]. In 2014 he was called up for compulsory military service in Nagorno Karabakh [6] He explained that as a Jehovah’s Witness his conscience did not allow him to serve in the army and he wished to perform alternative civilian service instead [7]. At the same time, he moved from Nagorno Karabakh to Masis, in Armenia [8]. He registered with the Masis military commissariat, which asked the Askeran military commissariat to transfer his personal file, and he applied to the Masis military commissariat requesting permission to perform alternative civilian service [9-11].

However, there appears to have been an administrative foul-up that resulted in him being arrested – in Armenia – under Article 347 §1 of the Nagorno Karabakh Criminal Code for evading conscription and returned to Nagorno Karabakh. to face prosecution [12-17]. In the subsequent legal proceedings, both the Appeal Court and the Supreme Court of Nagorno Karabakh dismissed his arguments under Article 9 ECHR, concluding that Armenia’s Alternative Service Act, on which he relied, did not apply in Nagorno Karabakh and that the fact that he was a Jehovah’s Witness did not exempt him from military service [18-23].

The arguments

Before the ECtHR, the Armenian Government argued that it had no jurisdiction in  Nagorno Karabakh, including in respect of Mr Avanesyan’s detention and conviction and that its only obligation was to exert influence over the local administration to prevent violations of international law [31]. Mr Avanesyan argued that Armenia exercised effective control over Nagorno Karabakh and was therefore responsible under the Convention for the violation of his Article 9 rights by the local administration, including by the local courts. If it were otherwise, the Convention would not be applicable in Nagorno Karabakh and the Court would be accepting that Nagorno Karabakh was an independent state [32].

The judgment

The Court recalled that it had consistently made clear that the test for establishing the existence of “jurisdiction” under Article 1 of the Convention had never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law [33]. Under its established case-law, “jurisdiction” under Article 1 was a sine qua non for a State to be held responsible for acts or omissions attributable to it which gave rise to an allegation of infringing Convention rights [34]. However, the Court had also recognised exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries and, in each case, the question of “exceptional circumstances” had to be determined with reference to the particular facts.

One such exception arose where a State exerted effective control over an area outside its national territory – and the obligation to secure Convention rights in such an area derived from the fact of that control, whether exercised directly through the Contracting State’s own armed forces or through a subordinate local administration [35]. It had previously examined the issue and concluded that, at the relevant time, Armenia had exercised effective control over Nagorno Karabakh and the surrounding territories and that, by doing so, Armenia was under an obligation to secure Convention rights in that area [36].

In the present case, Mr Avanesyan’s refusal to perform military service had been a manifestation of his religious beliefs and his conviction for draft evasion had been an interference with his freedom to manifest his religion under Article 9[51]. The parties disagreed as to whether or not the interference had been prescribed by law and pursued a legitimate aim, but the Court did not consider it necessary to determine that issue [52]. As to whether or not the interference had been “necessary in a democratic society”, the Court had previously made it clear that a State that had not introduced alternatives to compulsory military service enjoyed only a limited margin of appreciation and had to advance convincing and compelling reasons to justify any interference: see Bayatyan v Armenia [2011] ECHR 1095. In particular, it had to demonstrate that the interference corresponded to a “pressing social need” [55].

The Court dismissed the argument that Mr Avanesyan, despite having applied to perform alternative civilian service, had had no guarantee that he would be allowed to perform it because he was a citizen of Nagorno Karabakh: the Armenian Government had failed to produce any evidence in support of that contention and he had been an Armenian passport-holder since 2012. But even if he had been a “citizen” of Nagorno Karabakh, Armenia was still responsible for the acts and omissions of the local authorities and was under an obligation to secure the rights and freedoms set out in the Convention in the territory controlled by them [58]. A fair balance had not been struck between the interests of society as a whole and those of the applicant, and there had been a violation of Article 9 [58 & 59].

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For another recent case on similar facts, see Aslanian v The Republic of Moldova and Russia [2021] ECHR 643: conviction for refusing military service on religious grounds in the self-proclaimed “Moldovan Republic of Transdniestria”.