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THIRD
SECTION
CASE OF
BUKHARATYAN v. ARMENIA
(Application
no. 37819/03)
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 Bukharatyan 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. 37819/03) 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 Hayk Bukharatyan (“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 1993 he attended various
Jehovah’s Witnesses religious services and was baptised on 26
June 1994 at the age of 13.
- On
4 January 1997 the applicant was registered as a person liable for
military service with the Shahumyan Military Commissariat.
- In
September 1998, when the applicant turned 18, he advised the military
commissariat by letter that he refused to serve in the military
because of his religious beliefs. At that time, he also left home
being afraid that he would be taken to the military by force.
- During
the following months, according to the applicant, military personnel
harassed his family in an attempt to force him to join the military.
- On
15 December 1998 the applicant sent identical letters to the General
Prosecutor of Armenia, the Ministry of Justice of Armenia, the
Military Commissioner of Armenia, the Malatia-Sebastia District
Prosecutor’s Office and the Shahumyan Military Commissariat,
stating that it was contrary to his conscience and religious beliefs
to serve in the military and that he was willing to perform
alternative civilian service.
- By
a letter of 28 January 2000 the applicant was informed in writing by
the Malatia-Sebastia District Prosecutor’s Office that no
criminal proceedings would be brought against him, if he reported for
military service. The letter also urged the applicant to fulfil his
civic and filial duty to his motherland and to go through the school
of maturity in the form of military service.
- One
year after receiving the above letter, the applicant was contacted by
assistant prosecutor K. The applicant went to meet K. in April 2001.
According to the applicant, he was told that a criminal case would
not be initiated and that he would be forced to perform military
service. The applicant was accused of being a traitor to his country,
his religious beliefs were ridiculed, and he was mocked and cursed
because he would not serve in the military.
- On
5 July 2001 the applicant sent another letter to the authorities once
again explaining the reasons for his refusal to serve in the army.
B. Criminal proceedings against the applicant
- On
8 April 2002 criminal proceedings were instituted under Article 75
of the Criminal Code on account of the applicant’s draft
evasion.
- On
10 May 2002 a formal charge of draft evasion was brought against
the applicant and a search was declared for him.
- On
13 May 2002 the Malatia-Sebastia District Court of Yerevan ordered
the applicant’s detention on remand and authorised the
monitoring of his correspondence.
- On
26 November 2002 the applicant, having learnt that a criminal case
had been initiated against him, went to the Malatia-Sebastia District
Prosecutor’s Office where he was immediately placed under
arrest.
- On
1 December 2002 the applicant was released after signing an
undertaking not to leave his place of residence.
- On
2 April 2003 the Malatia-Sebastia District Court of Yerevan found the
applicant guilty as charged and sentenced him to two years in prison.
- On
an unspecified date the applicant appealed.
- On
2 May 2003 the Criminal Court of Appeal upheld the judgment of the
District Court.
- On
12 May 2003 the applicant appealed, arguing, inter alia, that
his conviction violated his rights guaranteed by Article 9 of the
Convention.
- On
30 May 2003 the Court of Cassation upheld the applicant’s
conviction.
- On
21 June 2003 the applicant was imprisoned.
- On
11 December 2003 the applicant was released on parole after having
served almost six months 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, as
interpreted by the former European Commission of Human Rights, it 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
48-49 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 opinion of Judge
Gyulumyan is 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.
