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THIRD
SECTION
CASE OF
TSATURYAN v. ARMENIA
(Application
no. 37821/03)
JUDGMENT
STRASBOURG
10 January
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Tsaturyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis
López Guerra,
Mihai Poalelungi, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37821/03) against the Republic
of Armenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Armenian national, Mr Ashot Tsaturyan (“the
applicant”), on 28 November 2003.
- The applicant was represented by Mr J.M. Burns, a
lawyer practising in Georgetown (Canada), Mr A. Carbonneau, a lawyer
practising in Patterson (USA), and Mr R. Khachatryan, a lawyer
practising in Yerevan. The Armenian Government (“the
Government”) were represented by their Agent, Mr G. Kostanyan,
Representative of the Republic of Armenia at the European Court of
Human Rights.
- On
6 September 2005 the President of the Third Section decided to give
notice of the application to the Government.
- On
23 June 2011 the President of the Third Section decided to apply
Article 29 § 1 of the Convention and to rule on the
admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in Yerevan.
A. Background to the case
- The
applicant is a Jehovah’s Witness. From 1997 he attended various
Jehovah’s Witnesses religious services.
- On
31 January 1997 the applicant was registered as a person liable for
military service with the Shahumyan Military Commissariat. Because
the applicant was studying at the university, his military service
was postponed.
- On
23 September 2002 the applicant received notice to appear at the
military commissariat to report for military service.
- On
the same date the applicant wrote a letter to the Malatia-Sebastia
District Military Commissariat, stating that he would not report for
military service and requesting that his case be sent to the
Prosecutor’s Office. The applicant also informed the General
Prosecutor of Armenia in writing that he refused to perform military
service because of his religious beliefs but was willing to perform
alternative civilian service.
- On
2 October 2002 the Shahumyan Military Commissar wrote to the relevant
police station about the applicant’s refusal to report for
military service, asking that he be forcibly brought to the military
commissariat.
- On
17 October 2002 the applicant made a statement at the police station,
explaining that he refused to perform military service because of his
religious beliefs but was willing to perform alternative civilian
service.
- By
a letter of 8 November 2002 the Shengavit District Prosecutor’s
Office of Yerevan informed the applicant that he would face criminal
charges if he failed to report for military service.
B. Criminal proceedings against the applicant
- On
4 March 2003 criminal proceedings were instituted under Article 75
of the Criminal Code on account of the applicant’s draft
evasion.
- On
18 March 2003 the applicant was questioned at the Shengavit District
Prosecutor’s Office of Yerevan. He once again submitted that he
was refusing to serve in the army for religious reasons but was
prepared to perform alternative civilian service.
- On
the same date the Shengavit District Court of Yerevan ordered that
the applicant be detained on remand.
- On
29 April 2003 the Shengavirt District Court of Yerevan found the
applicant guilty of draft evasion and sentenced him to two years in
prison.
- On
an unspecified date the applicant lodged an appeal.
- On
24 June 2003 the Criminal Court of Appeal upheld the judgment of the
District Court.
- On
3 July 2003 the applicant lodged an appeal, arguing, inter alia,
that his conviction violated his rights guaranteed by Article 9 of
the Convention.
- On
25 July 2003 the Court of Cassation upheld the applicant’s
conviction.
- On
28 August 2003 the applicant was released on parole after having
served five months and ten days of his sentence.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant domestic provisions see the judgment in the
case of Bayatyan v. Armenia ([GC], no. 23459/03,
§§ 41-45, 7 July 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- The
applicant complained that his conviction for refusal to serve in the
army had violated Article 9 of the Convention which reads as follows:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion
or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies, as required by Article 35 § 1 of the
Convention, since he had not applied to the Government under Section
12 § 1 (c) of the Military Liability Act with a request for
exemption from military service.
- The
applicant submitted that he had exhausted all the effective domestic
remedies, having appealed against his conviction to the Court of
Appeal and the Court of Cassation. In any case, Section 12 § 1
(c) of the Military Liability Act could not be considered as an
effective remedy.
- The
Court notes that the Government raised an identical argument which
was dismissed in the case of Bayatyan v. Armenia ((dec.),
no. 23459/03, 12 December 2006). There is no reason to come to a
different conclusion in the present case.
- This
objection must therefore be dismissed.
2. Conclusion
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was an interference
- The
Government claimed that there was no interference with the
applicant’s rights guaranteed by Article 9. They claimed that
Article 9 was not applicable to the applicant’s case since it,
as interpreted by the former European Commission of Human Rights, did
not guarantee a right to conscientious objection.
- The
applicant argued that Article 9 was applicable to his case and that
there has been an interference with his freedom to manifest his
religion.
- The
Court notes that this issue was recently decided by the Grand Chamber
which held that opposition to military service, where it is motivated
by a serious and insurmountable conflict between the obligation to
serve in the army and a person’s conscience or his deeply and
genuinely held religious or other beliefs, constitutes a conviction
or belief of sufficient cogency, seriousness, cohesion and importance
to attract the guarantees of Article 9 (see Bayatyan, cited
above, § 110). In that case the Grand Chamber concluded that
Article 9 was applicable to the applicant’s case, who was
similarly a Jehovah’s Witness who had refused to serve in the
army on conscientious grounds, finding that his objection to military
service was motivated by his religious beliefs which were genuinely
held and were in serious and insurmountable conflict with his
obligation to perform military service (ibid., § 111).
- The
Court observes that the circumstances of the present case are
practically identical. It therefore rejects the Government’s
argument and finds Article 9 to be applicable to the applicant’s
case.
- The Court concludes that the applicant’s failure
to report for military service was a manifestation of his religious
beliefs. His conviction for draft evasion therefore amounted to an
interference with his freedom to manifest his religion as guaranteed
by Article 9 § 1 (ibid., § 112). Such interference will be
contrary to Article 9 unless it is “prescribed by law”,
pursues one or more of the legitimate aims set out in paragraph 2 and
is “necessary in a democratic society” (see, among other
authorities, Buscarini and Others v. San Marino [GC],
no. 24645/94, § 34, ECHR 1999-I)
2. Whether the interference was justified
(a) Prescribed by law
- The
applicant submitted that the interference was not prescribed by law
because it was in violation of Armenia’s Constitution, the
commitments which the Armenian authorities had undertaken when
joining the Council of Europe and Armenia’s other international
obligations such as those stemming from Article 18 of the
International Covenant on Civil and Political Rights.
- The
Government did not comment on this point.
- The
Court, for the purposes of the present case and in view of its
findings concerning the necessity of the interference (see paragraphs
44-45 below), prefers to leave open the question of whether the
interference was prescribed by law (see Bayatyan, cited above,
§ 116).
(b) Legitimate aim
- The
applicant submitted that the interference did not pursue a legitimate
aim. Article 9 § 2 did not permit limitations in the interests
of national security, while no other aims were invoked by the
domestic courts in convicting the applicant.
- The
Government did not comment on this point.
- The
Court considers it unnecessary to determine whether the interference
pursued a legitimate aim under Article 9 § 2 since it was in any
event incompatible with that provision for the reasons set out below
(ibid., § 117).
(c) Necessary in a democratic society
- The
applicant submitted that the imposition of criminal sanctions on
conscientious objectors, even in those few member States that have
not yet implemented alternative civilian service, could not be
considered necessary in a democratic society. The Armenian
authorities had acknowledged that when they undertook a commitment to
refrain from imprisonment of conscientious objectors even before a
law providing for such service was passed. Furthermore, the
punishment imposed on him was wholly disproportionate in a modern
democratic State.
- The
Government did not comment on this point
- The
Court reiterates that, as enshrined in Article 9, freedom of thought,
conscience and religion is one of the foundations of a “democratic
society” within the meaning of the Convention. This freedom is,
in its religious dimension, one of the most vital elements that go to
make up the identity of believers and their conception of life, but
it is also a precious asset for atheists, agnostics, sceptics and the
unconcerned. The pluralism indissociable from a democratic society,
which has been dearly won over the centuries, depends on it. That
freedom entails, inter alia, freedom to hold or not to hold
religious beliefs and to practise or not to practise a religion (see
Kokkinakis v. Greece, 25 May 1993, § 31, Series A no.
260-A; Buscarini and Others, cited above, § 34; and Leyla
Şahin v. Turkey [GC], no. 44774/98, § 104, ECHR
2005-XI).
- While
religious freedom is primarily a matter of individual conscience, it
also implies, inter alia, freedom to manifest one’s
religion, alone and in private, or in community with others, in
public and within the circle of those whose faith one shares. Article
9 lists a number of forms which manifestation of one’s religion
or belief may take, namely worship, teaching, practice and observance
(see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §
60, ECHR 2000-XI, and Metropolitan Church of Bessarabia and Others
v. Moldova, no. 45701/99, § 114, ECHR 2001-XII).
- The
Court notes that it has already examined a similar complaint in the
case of Bayatyan v. Armenia and concluded that the imposition
of a penalty on the applicant, in circumstances where no allowances
were made for the exigencies of his conscience and beliefs, could not
be considered a measure necessary in a democratic society (see
Bayatyan, cited above, §§ 124-125). In the
present case, the applicant was similarly a member of Jehovah’s
Witnesses who sought to be exempted from military service not for
reasons of personal benefit or convenience but on the ground of his
genuinely held religious convictions and the only reason why he was
not able to do so and incurred criminal sanctions was the absence of
such an opportunity.
- For
the above reasons, the Court considers that the applicant’s
conviction constituted an interference which was not necessary in a
democratic society within the meaning of Article 9 of the Convention.
Accordingly, there has been a violation of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also raised a number of other complaints under Articles 9
and 14 of the Convention.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not comment on this claim.
- The
Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of his conviction and imprisonment
for his refusal to serve in the army on conscientious grounds. Having
regard to the circumstances of the case and ruling on an equitable
basis, it awards the applicant EUR 6,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant claimed a total of EUR 12,250 for costs and expenses
incurred in the domestic proceedings and the proceedings before the
Court. The applicant submitted invoices in respect of three lawyers,
one domestic and two foreign, containing lump sum amounts payable for
each portion of the work done up to and including the taking of a
final decision on his case.
- The
Government did not comment on this claim.
- The
Court reiterates that legal costs are only recoverable in so far as
they relate to the violation found (see Beyeler v. Italy [GC],
no. 33202/96, § 27, ECHR 2000-I). In the present case,
the applicant’s application to the Court included a number of
other complaints under Articles 9 and 14 of the Convention, which
were declared inadmissible. Therefore the claim cannot be allowed in
full and a reduction must be applied. Making its own estimate based
on the information available, the Court awards the applicant
EUR 4,000 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares by a majority the complaint concerning
the applicant’s conviction for draft evasion admissible under
Article 9 of the Convention and the remainder of the application
inadmissible;
- Holds by six votes to one that there has been a
violation of Article 9 of the Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Armenian drams at the rate applicable
at the date of settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Gyulumyan and Ziemele are annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE GYULUMYAN
The
instant application was lodged at the same time as
Bayatyan v. Armenia (GC, no. 23459/03, 7
July 2011) and raises the same issue under Article 9 of the
Convention.
In
the case of Bayatyan the Grand Chamber voted in favour of
finding a violation of the above-said Article, and in the present
case the majority of the Chamber followed the same approach.
For
the reasons set out in my detailed dissenting opinion in Bayatyan,
I voted against the majority on the admissibility and merits of
the claim, and so I did the same in the present case.
CONCURRING OPINION OF JUDGE ZIEMELE
- This
case follows the approach that the Court took in the leading judgment
in the case of Bayatyan v. Armenia ([GC], no. 23459/03, §§
41-45, 7 July 2011). There are three main grounds for finding a
violation of the right to freedom of religion in cases of
conscientious objectors: first, a person’s conscience or deeply
and genuinely held religious or other beliefs constituting a
conviction or belief of sufficient cogency, seriousness, cohesion and
importance to attract the guarantees of Article 9 (see Bayatyan,
cited above, § 110); second, the fact that at the time the
alleged events took place in Armenia the right to conscientious
objection was recognised in State practice in Europe; and, third,
that Armenia had pledged to enact the necessary legislation to
implement that right at domestic level.
- The
Bayatyan judgment, as followed by the Chamber in this case,
raises a very interesting question regarding the application of the
Convention in the light of an established regional customary norm
with respect to a State which – in the context of a political
process – has been given a certain time-limit for complying
with that customary norm. The Court’s answer is that even if
the facts of the case arose before and during the transitional period
for the enactment of the relevant domestic law on alternative service
granted to Armenia upon its accession to the Council of Europe, the
obligation to respect the right to freedom of religion of
conscientious objectors applies from the moment the right itself is
established in international law and the State concerned has ratified
the Convention. This sheds an interesting light on the role of the
Council of Europe and the political process of negotiating the
entrance conditions for prospective member States of the
organisation. Neither the Grand Chamber in the Bayatyan
judgment nor the Chamber in this case have provided a clear solution
to this. Instead, the dialogue of Armenia with the Council of Europe
has been one of the arguments considered by the Court as part of the
balancing exercise between the rights of the applicants and the
public interest.
- It
appears to me that the Court has in the past taken a clearer position
on the question of possible conflicting obligations. For example, in
the Slivenko v Latvia case it stated that:
“By
ratifying the Convention and Protocols Nos. 1, 4, 6 and 7 on 27 June
1997, [Latvia] has undertaken to “secure”, as from that
date, the rights and freedoms defined in the Convention and the said
Protocols to everyone within its jurisdiction (Article 1 of the
Convention), subject to any valid reservations made under Article 57
of the Convention. ... It follows from the text of Article 57 §
1 of the Convention, read in conjunction with Article 1, that
ratification of the Convention by a State presupposes that any law
then in force in its territory should be in conformity with the
Convention. If that should not be the case, the State concerned has
the possibility of entering a reservation in respect of the specific
provisions of the Convention (or Protocols) with which it cannot
fully comply by reason of the continued existence of the law in
question (see Slivenko v. Latvia (dec.) [GC], no. 48321/99,
§§ 58 and 60, ECHR 2002 II (extracts))”.
- Finally,
in this and the other cases, I find the test established by the Court
of a conviction or belief of sufficient cogency, seriousness,
cohesion and importance to attract the guarantees of Article 9 a
rather difficult one. It is not clear to me how the Court will assess
whether there is sufficient cogency, seriousness and cohesion. In the
present case, the applicant became a Jehovah’s Witness the same
year that he was registered as a person liable for military service.
In any event, the Chamber did not examine the cogency of the beliefs
of the applicant. The Court concluded that:
“..
the applicant was similarly a member of Jehovah’s Witnesses who
sought to be exempted from military service not for reasons of
personal benefit or convenience but on the ground of his genuinely
held religious convictions and the only reason why he was not able to
do so and incurred criminal sanctions was the absence of such an
opportunity” (see paragraph 44). It seems to me that the
European Court acts on the basis of an assumption that the applicant
indeed holds genuine convictions as confirmed by all the procedures
that he has gone through at domestic level and that, in the absence
of any proper domestic assessment or arguments to the contrary from
the Government, the Court has had to maintain that assumption. I can
certainly agree that the Government did not submit any evidence to
the contrary or, for that matter, any other relevant explanation. In
my view, there is still an unresolved question regarding the test and
how it will be applied in practice in future cases.
