Lack of civilian service as an alternative to military service precluded recognition of conscientious objection, in breach of the Convention

JUDGMENT

Mushfig Mammadov and others v. Azerbaijan 17.10.2019 (no. 14604/08)

see here

SUMMARY

The case concerned the applicants’ refusal on religious grounds to serve in the army.

The Court observed that the criminal prosecutions and convictions of the applicants on account of
their refusal to perform military service had stemmed from the fact that there was no alternative
service system under which individuals could benefit from conscientious objector status. That
amounted to an interference which had not been necessary in a democratic society.

The case highlighted an issue relating to the lack of legislation on civilian service as an alternative to
military service in Azerbaijan. The enactment of such a law corresponded to a commitment entered
into by Azerbaijan on its accession to the Council of Europe and was also a requirement under the
country’s own Constitution.

PROVISIONS

Article 9

Article 4 of Protocol no. 7

PRINCIPAL FACTS

The applicants, Mushfig Faig oglu Mammadov, Samir Asif oglu Huseynov, Farid Hasan oglu
Mammadov, Fakhraddin Jeyhun oglu Mirzayev and Kamran Ziyafaddin oglu Mirzayev, are five
Azerbaijani nationals who were born in 1983, 1984, 1987, 1993 and 1994 respectively and live in
Baku and Ganja (in the case of Mr Fakhraddin Jeyhun oglu Mirzayev) (Azerbaijan). All five state that
they are Jehovah’s Witnesses.

The applicants, who are all of age to be called up for military service, informed their local military
commissariats or recruitment offices that they wished to be exempted from such service and, in the
case of most of them, to perform alternative civilian service. They were all prosecuted under Article
321.1 of the Penal Code and sentenced to imprisonment. Their appeals were dismissed.

THE DECISION OF THE COURT…

Article 9

The Court observed that the applicants’ objection to performing military service had been based on
sincere religious convictions which had come into serious and insuperable conflict with their military
service obligations.

The Court reiterated that freedom of thought, conscience and religion was one of the cornerstones
of a “democratic society” within the meaning of the Convention. That freedom presupposed, inter
alia, the liberty to adhere, or not to adhere, to a religion and the right to decide whether or not to
practice it. According to its established case-law, the Court allowed States Parties some margin of
appreciation to assess the existence and extent of the necessity of interference. The Court’s task was
to ascertain whether the measures taken at the domestic level were justified in principle and
proportionate.

The Court noted that when Azerbaijan had acceded to the Council of Europe it had undertaken to
enact, within two years of its accession, a law on alternative service in conformity with European
standards. Furthermore, Article 76 § 2 of the Azerbaijani Constitution authorised persons whose
convictions were incompatible with the performance of active military service to carry out
alternative service in place of that compulsory service. The Court noted, however, that no law had
yet been enacted on an alternative service.
The criminal prosecutions and convictions of the applicants on account of their refusal to perform
military service had stemmed from the fact that there was no alternative service system under
which individuals could benefit from conscientious objector status, and amounted to an interference
which had not been necessary in a democratic society. There had therefore been a violation of
Article 9 of the Convention.

Article 4 of Protocol No. 7

The complaint under that provision was out of time, since it had been lodged more than six months
after 29 December 2010, the date of the last decision given by the Supreme Court dismissing the
appeal on points of law lodged by Mr Mushfig Faig oglu Mammadov. That complaint therefore had
to be rejected.

Article 46

The Court observed that the present case highlighted an issue relating to the lack of legislation on
civilian service as an alternative to military service in Azerbaijan. The enactment of such a law
corresponded to a commitment entered into by Azerbaijan on its accession to the Council of Europe,
and was also a requirement under Article 76 § 2 of its Constitution.

The Court considered it necessary to point out that such a situation in principle called for legislative
action by the State in order to fulfil its obligations to enable the applicants and other persons in the
same situation to benefit from the right to conscientious objection.

Just satisfaction (Article 41)

The Court held that Azerbaijan was to pay 5,000 euros (EUR) to the first applicant, EUR 8,400 to the
second applicant, EUR 10,800 to the third applicant, EUR 9,600 to the fourth applicant and EUR
3,500 to the fifth applicant in respect of non-pecuniary damage, and EUR 161 to the first applicant,
EUR 430 to the second applicant, EUR 195 to the third applicant, EUR 83 to the fourth applicant and
EUR 100 to the fifth applicant in respect of costs and expenses.


ECHRCaseLaw

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