Conscientious objection: unfortunate precedent should not survive in the Grand Chamber

It is great news that the Grand Chamber has accepted the request for referral in the conscientious objection case of Bayatyan v. Armenia. Last October, against commonly accepted standards in the Council of Europe Member States (see, PACE, Recommendation 1518, 2001, paras. 2 and 3) and, despite Armenia’s official commitment to pardon conscientious objectors (see, PACE, Opinion No. 221, 2000, para. 13, iv, d), the Chamber upheld a Jehovah’s Witness conviction for refusing to perform military service on religious grounds. The European Court concluded that “Article 9, read in the light of Article 4 § 3 (b), does not guarantee a right to refuse military service on conscientious grounds.”

The applicant had asked the Court to examine the case “in the light of the evolution of the law and the current practice among member states, the greater majority of which had recognized the right of conscientious objection.” The Court admitted the fact that the majority of Member States had adopted laws providing for alternative service for conscientious objectors. Unfortunately, however, the Court did not proceed this way. Quite the contrary, it held that, “as far as this particular issue is concerned, this factor cannot serve a useful purpose for the evolutive interpretation of the Convention.”According to the Court, this fact could not be relied on to hold a Contracting Party that has not recognized alternative service for conscientious objectors to be in violation of the Convention. In the Court’s opinion, Article 4 § 3 (b) “clearly left the choice of recognising conscientious objectors to each Contracting Party.” This provision excludes from the definition of forced labor “any service of a military character or, in cases of conscientious objectors, in countries where they are recognized, service exacted instead of compulsory military service.”

Interestingly, the UN Human Rights Committee has adopted a completely opposite stance in its conscientious objection jurisprudence, even though similar wording is found in Article 8 § 3 of the ICCPR. Referring to this Article, the Committee notes that “the Covenant excludes from the scope of ‘forced or compulsory labour,’ which is proscribed, ‘any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.’” In the Committee’s view, it follows that Article 8 of the Covenant itself “neither recognizes nor excludes a right of conscientious objection.” The Committee’s assessment thus proceeds “solely in the light of article 18 of the Covenant, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose.” The authors’ claim of conscientious objection to military service was therefore recognized as a protected form of manifestation of religious belief under Article 18 (freedom of thought, conscience and religion).

But going back to our case referred to the Grand Chamber (and hoping this will draw inspiration from the Human Rights Committee), what is furthermore noteworthy about this instance is the fact that, although at the time of the applicant’s refusal to perform military service the right to conscientious objection was not recognized in Armenia, it was clear that the applicant’s conviction was in direct contradiction with the government’s official commitment to pardon conscientious objectors. As the dissenting judge notes, this declaration had been made more than two years before the applicant’s sentence to imprisonment, in consideration of Armenia’s application for membership of the Council of Europe.

To conclude, this precedent clearly represents a step backward in the Court’s case law, just when it had started giving hints in the right direction. It is unfortunate that conscientious objection has not yet found a firm place in the ECHR. Hopefully, the Grand Chamber will provide for one in the framework of Article 9. As the same Council of Europe has acknowledged, the right to conscientious objection is a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the European Convention on Human Rights.