A recent judgment from the European Court of Human Rights (ECHR) further advanced the rights of young men who conscientiously object to military service. On October 12, 2017, the ECHR set a precedent in the case of Adyan and Others v. Armenia concerning the type of alternative service that should be offered to these men.

For many years, the jurisprudence of the ECHR did not recognize the rights of conscientious objectors, and many suffered persecution and imprisonment as a result. However, the Court’s stance changed with its 2011 judgment in the case of Bayatyan v. Armenia, which recognized conscientious objection as a fundamental right. In the more recent judgment in Adyan, the ECHR has determined that conscientious objectors are entitled to an alternative service that is genuinely civilian in nature and that is not punitive.

A brief history of conscientious objection in Armenia shows how the favorable ECHR judgments in Bayatyan, Adyan, and others effected a major change in the government’s treatment of conscientious objectors.

Armenia’s Promise, and Subsequent Failure, to Adopt ACS

No alternative but punishment. When Armenia joined the Council of Europe in 2001, it had committed to adopting a law on alternative civilian service (ACS) that conformed to European standards, namely, a program of civilian work that is not under military control and not punitive in length. It also agreed to pardon all conscientious objectors. * However, Armenia had yet to fulfill its promise when it called Vahan Bayatyan, who is one of Jehovah’s Witnesses and a conscientious objector, to serve in the military. In 2002, he was convicted and imprisoned because he refused to perform military service, and Armenia had no provision for ACS. In 2003, Mr. Bayatyan submitted an application to the ECHR, claiming that Armenia violated his right to freedom of conscience and religion when he was punished with imprisonment.

A flawed alternative—then punishment. In 2004, Armenia adopted a law on ACS, and a number of young Witness men accepted the option to perform ACS in lieu of military service. Once enrolled, however, they realized that the program was supervised, not by civilian authorities, but by the military, and after giving notice, they left their ACS assignments. For doing so, they were arrested and prosecuted, and some were sentenced to prison. In May 2006, Hayk Khachatryan and 18 other Witnesses who were conscientious objectors submitted an application to the ECHR, claiming that their rights had been violated by this illegal prosecution. *

Years without progress. For years, Armenia took no steps to amend its law on ACS. The Witnesses continued to reject the flawed ACS, and Armenia continued to imprison them—317 were convicted between 2004 (when the ACS law was adopted) and 2013 (when the ACS law was amended) and served sentences ranging from 24 to 36 months.

During this time, the ECHR made little progress on this issue. In 2009, it considered Mr. Bayatyan’s complaint, which argued that his objection to military service was protected under Article 9 of the European Convention, which guarantees the right to freedom of conscience and religion. However, the ECHR was obliged to rely on its decades-old jurisprudence. It continued to reason that it was first a choice of each country to recognize the right of conscientious objection to military service. If the country did not, then Article 9 could not be used to guarantee freedom from prosecution for refusing to serve in the military. Since this judgment seemed to be out of touch with the prevailing international norms on conscientious objection, Mr. Bayatyan’s lawyers applied for referral of his case to the Grand Chamber of the ECHR for reconsideration.

Hearing before the Grand Chamber of the ECHR in the case of Bayatyan v. Armenia, November 24, 2010

A breakthrough. The turning point came when the Grand Chamber of the ECHR reexamined Mr. Bayatyan’s application. On July 7, 2011, the ECHR, for the first time, clearly stated that conscientious objection is a right protected under Article 9 of the Convention. It reasoned that the Convention is a “living instrument” that, when interpreted, needs to take into account the evolving law that has brought “a virtually general consensus on the question in Europe and beyond.” The Grand Chamber’s judgment not only elevated the right of conscientious objection in Europe but also obligated Armenia to provide a genuine alternative to military service for conscientious objectors.

“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.”—Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011

Armenia Amends Its Law on ACS

Lack of genuine alternative civilian service still an issue. In the summer of 2011, four Witnesses in Armenia, including Artur Adyan, were convicted and imprisoned for refusal to perform ACS, which was under military control. They submitted an application to the ECHR, claiming that Armenia had violated their rights—the alternative that had been provided by Armenia since 2004 was inconsistent with European standards and was incompatible with their conscience.

The problem of military supervision of a civilian program continues. On November 27, 2012, the ECHR released its judgment in the case Khachatryan and Others v. Armenia, which involved the 19 Witnesses who left the ACS program because it was under military, not civilian, supervision. The ECHR ruled that the prosecutions and detentions of the Witnesses were illegal. Although the judgment noted that the applicants complained that the ACS program was under military control, the Court did not rule on that point in Khachatryan.

A genuine alternative. In the summer of 2013, the government of Armenia amended its law to introduce ACS, as it had promised to do in 2001. By October 2013, most of the Witnesses in Armenian prisons had been released, although a few who were nearly at the end of their term chose to serve out their prison sentence. Since then, conscientious objectors who refuse military service in Armenia are offered ACS.

ECHR Case Law Progresses

The two ECHR judgments, Bayatyan and Khachatryan, make it clear that conscientious objection to military service is a fundamental right and must be respected by the Armenian government. However, the ECHR stopped short of ruling that the ACS program must not be under military control or supervision.

That gap was bridged when the ECHR released its judgment in Adyan and Others v. Armenia on October 12, 2017. In Adyan, the ECHR reasoned that because the right to object to military service is protected, Armenia was required to offer conscientious objectors an acceptable alternative to military service that complied with European standards. The ACS program had to be outside of the control and supervision of the military and could not be punitive in nature. The ECHR awarded compensation for the punishment endured by the men because of their rejection of the flawed program.

“The Court considers that the right to conscientious objection guaranteed by Article 9 of the Convention would be illusory if a State were allowed to organise and implement its system of alternative service in a way that would fail to offer – whether in law or in practice – an alternative to military service of a genuinely civilian nature and one which was not deterrent or punitive in character.”—Adyan and Others v. Armenia, no. 75604/11, § 67, ECHR 2017

Resolution of the Issue

As of January 2018, 161 Witness men in Armenia have completed their ACS, and 105 men are currently enrolled in the program. Both the Witnesses and the authorities overseeing the ACS program are pleased with its success. It serves the real needs of the community and is acceptable to the men who request an alternative form of national service. It also eliminates the human rights problem that previously existed in Armenia.

André Carbonneau, one of the lawyers who represented Witnesses in Armenia, commended the government for resolving the issue. He stated: “In looking at ECHR judgments against Armenia, we have seen the progress of this issue since Bayatyan in 2011. The Khachatryan and Adyan judgments pave the way for strong protection for alternative civilian service free from military interference. We hope that other countries without a genuine alternative civilian service program will take note of Armenia’s success in implementing an alternative service that is acceptable to conscientious objectors and that works to the benefit of society.”

Selected Countries With Compulsory Military Service and Without an Acceptable Alternative Civilian Service (ACS)

 

No ACS

ACS is Punitive

Right to ACS Exists but is not Implemented

Azerbaijan

 

 

X

Belarus

 

X

 

Eritrea

X

 

 

Lithuania

X *

 

 

Singapore

X

 

 

South Korea

X

 

 

Tajikistan

 

 

X

Turkey

X

 

 

Turkmenistan

X

 

 

Time Line

  1. October 12, 2017

    ECHR releases judgment in Adyan and Others v. Armenia

  2. January 2014

    First Witnesses enrolled in new ACS program begin their work

  3. November 12, 2013

    No Witnesses in prison for conscientious objection—for the first time in over 20 years

  4. June 8, 2013

    Armenia adopts amendments to Law on ACS, which come into force October 2013

  5. November 27, 2012

    ECHR releases judgment in Khachatryan and others v. Armenia

  6. January 10, 2012

    ECHR follows Bayatyan in cases of Bukharatyan v. Armenia and Tsaturyan v. Armenia, finding that Armenia violated Article 9 when it imprisoned Witnesses

  7. July 7, 2011

    Grand Chamber of ECHR finds violation of right of freedom of conscience (Article 9 of European Convention), protecting rights of conscientious objectors in 16-1 judgment in Bayatyan v. Armenia

  8. October 27, 2009

    ECHR releases judgment in Bayatyan v. Armenia, ruling that Article 9 of European Convention did not apply to conscientious objection; case referred to Grand Chamber of ECHR

  9. 2004

    Armenia adopts law on ACS—under supervision of military

  10. 2001

    Armenia commits to adopting law on ACS

^ par. 6 Opinion No. 221 (2000) of the Parliamentary Assembly of the Council of Europe recommended that Armenia be invited to become a member of the Council of Europe on condition that “Armenia undertakes to honour the following commitments: . . . to adopt, within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service has come into force, to perform non-armed military service or alternative civilian service.”

^ par. 7 Armenia’s prosecutions and detentions of the 19 Witnesses were illegal because when they were convicted in 2005, there was no law in Armenia that made it a crime to abandon alternative service.

^ par. 39 Lithuania’s “alternative national defense service” is under military control and supervision.