July 20, 2011
In the Grand Chamber judgment in the case of Bayatyan v. Armenia the Court recognized a right to conscientious objection under Article 9. The first step in doing so was to correct a mistake started by the European Commission of Human Rights (Commission) regarding the interpretation of Article 9 in conjunction with Article 4.
The initial position of the Commission was set out in the case of Grandrath v. the Federal Republic of Germany which concerned a Jehovah’s Witness who sought to be exempted not only from military but also from substitute civilian service. He alleged a violation of Article 9 of the Convention on the ground that the authorities had imposed on him a service which was contrary to his conscience and religion and had punished him for his refusal to perform such service. The Commission observed at the outset that, while Article 9 guaranteed the right to freedom of thought, conscience and religion in general, Article 4 of the Convention contained a provision which expressly dealt with the question of compulsory service exacted in the place of military service in the case of conscientious objectors. It concluded that, since Article 4 expressly recognised that civilian service might be imposed on conscientious objectors as a substitute for military service, objections of conscience did not, under the Convention, entitle a person to exemption from such service.
When arguing before the Grand Chamber the Applicant did something he did not do when the case was examined by the Chamber – he challenged the very application of Article 4 in cases like his.
Article 4 § 3 (b) states: “For the purpose of this Article the term “forced or compulsory labour” shall not include: (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.” Relying on the Travaux préparatoires, the Applicant claimed that Article 4 § 3 (b) had never been meant to be read in conjunction with Article 9. Its sole purpose was to delimit the right guaranteed by Article 4 § 2 and it neither recognised nor excluded the right to conscientious objection (paragraph 73). The Grand Chamber examined the Travaux préparatoires whose paragraph 23 states: “In sub-paragraph [(b)], the clause relating to conscientious objectors was intended to indicate that any national service required of them by law would not fall within the scope of forced or compulsory labour. As the concept of conscientious objection was not recognised in many countries, the phrase ‘in countries where conscientious objection is recognised’ was inserted”. The Court proceeded by stating that in its opinion, the Travaux préparatoires confirmed that the sole purpose of sub-paragraph (b) of Article 4 § 3 was to provide a further elucidation of the notion “forced or compulsory labour”. In itself it neither recognised nor excluded a right to conscientious objection and should therefore not had a delimiting effect on the rights guaranteed by Article 9 (see paragraph 100).
The Travaux préparatoires played an important role in this case. I cannot say that the Grand Chamber would not have used them on its own initiative in this case, but I know that the Commission did not for many years and the Chamber did not either. Applause to the Applicant for the well argued interpretation of the Convention’s norm.