BUKHARATYAN v. ARMENIA - 37819/03 [2012] ECHR 14 (10 January 2012)

JUDGMENT STRASBOURG 10 January 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, 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. 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