A Conscientious Objector's Guide to the International Human Rights System

European Court of Human Rights

Summary

The European Court of Human Rights in Strasbourg is an international human rights court charged with dealing with individual complaints in relation to alleged violations of the European Convention on Human Rights.
Before submitting a complaint to the European Court of Human Rights, domestic remedies have to be exhausted, unless these would be unreasonably prolonged or not effective. The complaint should also not have been submitted to any other procedure of international investigation or settlement.
If a complaint is declared admissible, and the Court decides on the merits of the case, it will either find there has been a violation of specific articles of the European Convention or not. In a case where the Court finds a violation of the Convention, it will usually also award compensation.
Decisions by the European Court of Human Rights are legally binding on the State concerned.

1. Likely results from use of mechanism

The European Court of Human Rights will first take a decision of the admissibility of a complaint, depending on its admissibility criteria. Should the Court find that a complaint is admissible, it will issue a judgment on the merits of the case, either finding that there was a violation of the European Convention on Human Rights, and usually awarding compensation, or finding that there has not been a violation of the Convention.
Following a judgment against a State, the Committee of Ministers of the Council of Europe will monitor the implementation of the judgment by the State concerned.

Urgent action

The Court may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the Convention. Interim measures are urgent measures which, in accordance with the established practice of the Court, apply only where there is an imminent risk of irreparable damage. Interim measures are applied only in limited situations: the most typical cases are ones in which there are fears of a threat to life (situation falling under Article 2 of the Convention) or ill-treatment prohibited by Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment).
More information on interim measures is included in a practical guide published by the European Court, available at http://www.echr.coe.int/NR/rdonlyres/5F40172B-450F-4107-9514-69D6CBDECF5....

2. To which States does the mechanism apply?

The European Convention on Human Rights applies to all 47 member States of the Council of Europe. The rights set out in the Convention have to be guaranteed not only to their own citizens but also to everybody in their jurisdiction. A list of member States of the Council of Europe is available at http://www.coe.int/aboutCoe/index.asp?page=47pays1europe&l=en.

3. Who can submit information?

A complaint (called an “application”) can only be submitted by the victim(s) of alleged human rights violations or their legal representatives. However, NGOs or legal entities can also be the victims of human rights violations (for example in the case of freedom of association).

4. When to submit information?

Before submitting a complaint to the European Court of Human Rights, all domestic remedies need to be exhausted. This means that all appeals to courts available in a country need to have been exhausted, including – if possible – an appeal to the Constitutional or Supreme Court. In these appeals, the substance of the violations of the European Convention (not the Convention itself) needs to have been raised.
An application to the European Court of Human Rights needs to be made within six months from the date of the final decision at domestic level (generally the judgment of the highest court). After this time limit an application cannot be accepted by the Court.

5. Special rules of procedure or advice for making a submission?

For the initial application to the Court it is not strictly necessary to be represented by a lawyer. However, it might be advisable to already involve a lawyer, as this might increase the chances of your application. About 90% of applications are declared inadmissible by the Court. Application forms are available for download at http://www.echr.coe.int/ECHR/EN/Header/Applicants/Apply+to+the+Court/App.... On the website of the European Court you can also go through a first admissibility checklist at http://www.echr.coe.int/ECHR/EN/Header/Applicants/Apply+to+the+Court/Che....

The first application to the European Court should include:

  • a brief summary of the facts and of your complaint;
  • an indication which of your rights under the European Convention have been violated;
  • the domestic remedies you have used;
  • copies of the decisions given in your case by all the public authorities concerned; and
  • your signature as the applicant, or the signature of your legal representative, plus a form authorising your representative and signed by you.

For an application to be admissible, it is important that:

  • the application is made by the victim(s) or their legal representatives;
  • the alleged violation has not previously been under investigation by another international settlement procedure, which – in the case of the European Court – are the United Nations Human Rights Committee (individual complaint procedure), the Committee on Freedom of Association of the International Labour Organisation, and the United Nations Working Group on Arbitrary Detention.
  • The victim has to have suffered a “significant disadvantage” as a consequence of the violation of his or her human rights.

Before making an application to the European Court, it is advisable to study the Practical Guide on Admissibility Criteria published by the Court (see http://www.echr.coe.int/NR/rdonlyres/B5358231-79EF-4767-975F-524E0DCF2FB...).

Applications should be sent by registered post to:
The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex.

An application can be sent by fax first, but should also be sent by post.

While the initial application can be made in any official language of any member State of the Council of Europe, any follow-up communication with the European Court after the Court has given notice to the Government concerned for their observations has to be in one of the official languages of the Court, which are English and French.

As soon as the Court has given notice to the Government for their observations, however, the presence of a lawyer is required.

6. What happens to the submission (how long will it take)?

Following the submission of an application to the European Court, first a single judge will screen the application. If the single judge finds that the application is inadmissible, and no further examination is needed, he or she can decide so. The applicant will be notified by letter. The great majority of cases are declared inadmissible by a single judge.
If the single judge does not find the application inadmissible, he or she will forward it to a Committee or to a Chamber for further examination.
A committee of three judges can also find an application inadmissible at any stage of the proceedings. If the case is well covered by case law of the European Court, and no further examination is required, the committee can also find the application admissible and render a judgment on the merits of the case. In both cases, a decision of the committee has to be unanimous.
Decisions by a single judge or by a committee of three judges are final.

Only cases that are not obviously inadmissible will be communicated to the Government of the State concerned. From that time on it is obligatory to be represented by a lawyer.

Usually, the procedure before the European Court of Human Rights is in writing only. Once a chamber has declared an application admissible, the President of the Chamber may invite the parties to the case to submit further written observations and evidence. Both parties will usually given the same time to submit information. While it is possible to request an oral hearing, a decision on this will be taken by the Chamber.

The European Court of Human Rights introduced a new “pilot judgment procedure” in cases that reveal structural or systemic problems in a country party to the European Convention, and where the Court received a number of similar applications. If a case is selected for the pilot judgment procedure, it is dealt with as a matter of priority, while the remaining cases are on hold (more information is available in Rule 61).

Where the Chamber finds that there has been a violation of one of the rights protected by the European Convention of Human Rights, the Chamber may also take a decision on “just satisfaction” (the payment of compensation to the victim), if an application has been made.

What happens after the judgement?

The Court transmits the judgement to the Committee of Minister of the Council of Europe which confers with the country how to execute the judgement. As a consequence of the supervision of the Committee, amendments to legislation are usually made.

Referral to the Grand Chamber

Both, the State concerned and the applicant can request a referral of the case to the Grand Chamber of the European Court within three months of a Chamber judgment. It is important to highlight in such an application the serious questions relating to the interpretation of the European Convention, or the serious issue of general importance.
A panel of five judges of the Grand Chamber will examine the request solely on the basis of the case file, and either accept or refuse it. It does not need to give reasons for the refusal of the request.
Should the request be granted, the Grand Chamber will decide the case by means of a judgment.

How long does it take?

The European Court of Human Rights has a huge backlog of cases. Even the first stage – the decision on admissibility – can take well over one year, and a decision on the merits of a case will take considerably longer. Even though the Court aims to decide on important cases within three years, it is highly likely that it will take five years of more.

7. History of the use of the mechanism

The European Court of Human Rights and the former European Commission of Human Rights (abolished in 1998) have been used in a range of cases related to conscientious objection to military service and to military taxation – with mixed success.
As late as in 2011, the Grand Chamber of the European Court of Human Rights overturned the jurisprudence of the former European Commission of Human Rights, and recognised that the right to conscientious objection to military service is protected under article 9 of the European Convention (Bayatyan v. Armenia, 23459/03). Since then, the European Court has consolidated its jurisprudence with more cases from Armenia and Turkey.
Previously, the European Court had not evaluated cases brought by conscientious objectors under article 9 of the Convention. In its judgment in the case of Turkish conscientious objector Osman Murat Ülke, the Court ruled that the repeated imprisonment amounted to a “civil death”, and therefore to a violation of article 3 of the European Convention (prohibition of inhuman and degrading treatment).
Several cases of total objectors refusing substitute service were declared inadmissible by the former European Commission of Human Rights (see Johansen v. Norway (10600/83)), as were cases complaining about the punitive length of substitute service (see Tomi Autio v. Finland (17086/90)). On the latter question, the jurisprudence of the former European Commission of Human Rights is very different to the one of the United Nations Human Rights Committee (see Foin v. France, 1999).

Contact Details: 
European Court of Human Rights Council of Europe 67075 Strasbourg Cedex France Tel: +33-3-88 41 20 18 Fax: +33-3-88 41 27 30
Further Reading: 

Interpretations

Title Date
Recommendation CM/Rec(2010)4 of the Committee of Ministers to member states on human rights of members of the armed forces 24/10/2010

"H. Members of the armed forces have the right to freedom of thought, conscience and religion. Any limitations on this right shall comply with the requirements of Article 9, paragraph 2 of the European Convention on Human Rights.
40. Members of the armed forces have the right to freedom of thought, conscience and religion, including the right to change religion or belief at any time. Specific limitations may be placed on the exercise of this right within the constraints of military life. Any restriction should however comply with the requirements of Article 9, paragraph 2, of the Convention. There should be no discrimination between members of the armed forces on the basis of their religion or belief.
41. For the purposes of compulsory military service, conscripts should have the right to be granted conscientious objector status and an alternative service of a civilian nature should be proposed to them.
42. Professional members of the armed forces should be able to leave the armed forces for reasons of conscience.
43. Requests by members of the armed forces to leave the armed forces for reasons of conscience should be examined within a reasonable time. Pending the examination of their requests they should be transferred to non-combat duties, where possible.
44. Any request to leave the armed forces for reasons of conscience should ultimately, where denied, be examined by an independent and impartial body.
45. Members of the armed forces having legally left the armed forces for reasons of conscience should not be subject to discrimination or to any criminal prosecution. No discrimination or prosecution should result from asking to leave the armed forces for reasons of conscience.
46. Members of the armed forces should be informed of the rights mentioned in paragraphs 41 to 45 above and the procedures available to exercise them.
"

Recognition of CO Recognised
Length/terms of service Recognised
Discrimination Recognised
Time limits Recognised
in-service objection Recognised
Repeated punishment Recognised
Recomendación 1518 (2001) 23/05/2001

The Assembly accordingly recommends that the Committee of Ministers invite those member states that have not yet done so to introduce into their legislation:
i. the right to be registered as a conscientious objector at any time: before, during or after conscription, or performance of military service;
ii. the right for permanent members of the armed forces to apply for the granting of conscientious objector status;
iii. the right for all conscripts to receive information on conscientious objector status and the means of obtaining it;
iv. genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.

Recognition of CO Recognised
Length/terms of service Recognised
Time limits Recognised
in-service objection Recognised
Recommendation No. R(87)8 of the Committee of Ministers to member states regarding conscientious objection to compulsory military service 09/04/1997

1. Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service; (…)
8. The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service; (...)
10. Alternative service shall not be of a punitive nature. Its duration shall, in comparison to that of military service, remain within reasonable limits;
11. Conscientious objectors performing alternative service shall not have less social and financial rights than persons performing military service. Legislative provisions or regulations which relate to the taking into account of military service for employment, career or pension purposes shall apply to alternative service.
"

Recognition of CO Recognised
in-service objection Recognised
Recommendation 816 (1977) on the right of conscientious objection to military service 06/10/1977

The Assembly,(...)
4. Recommends that the Committee of Ministers:
a. urge the governments of member states, in so far as they have not already done so, to bring their legislation into line with the principles adopted by the Assembly ;
b. introduce the right of conscientious objection to military service into the European Convention on Human Rights.

Recognition of CO Recognised
Recommendation 478 (1967) on the right of conscientious objection 26/01/1967

The Assembly,
1. Having regard to its Resolution 337 on the right of conscientious objection,
2. Recommends the Committee of Ministers:
(a) to instruct the Committee of Experts on Human Rights to formulate proposals to give effect to the principles laid down by the Assembly in its Resolution 337 by means of a Convention or a recommendation to Governments so that the right of conscientious objection may be firmly implanted in all member States of the Council of Europe ;
(b) to invite member States to bring their national legislation as closely as possible into line with the principles adopted by the Consultative Assembly.

Recognition of CO Recognised
Precedentes (Jurisprudencia)
Title Date
Case of Tarhan v. Turkey (Application no. 9078/06) 17/07/2012

The case concerned the failure to recognise the right to conscientious objection in Turkey. The Court reiterated that the system of compulsory military service allowed for no exceptions on grounds of conscience and resulted in heavy criminal sanctions being imposed on those who refused to comply. It failed to strike a proper balance between the general interest of society and that of conscientious objectors. The penalties, sanctions, convictions and prosecutions imposed on conscientious objectors, when no measures were provided to take account of the requirements of their consciences and convictions, could not be regarded as necessary in a democratic society.
Violations of Articles 3 and 9 of the Convention.

Recognition of CO Recognised
Repeated punishment Recognised
Case of Savda v. Turkey (Application no. 42730/05) 12/06/2012

The case concerned the failure to recognise the right to conscientious objection in Turkey. The Court reiterated that the system of compulsory military service allowed for no exceptions on grounds of conscience and resulted in heavy criminal sanctions being imposed on those who refused to comply. It failed to strike a proper balance between the general interest of society and that of conscientious objectors. The penalties, sanctions, convictions and prosecutions imposed on conscientious objectors, when no measures were provided to take account of the requirements of their consciences and convictions, could not be regarded as necessary in a democratic society.
Violations of Articles 3 and 9 and a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the military court.

Recognition of CO Recognised
Repeated punishment Recognised
Case of Feti Demirtaş v. Turkey (Application no. 5260/07) 17/01/2012

The objections of the applicant, a Jehovah’s Witness, to serving in the armed forces had been motivated by genuinely held religious beliefs that had been in serious and insurmountable conflict with his obligation to perform military service. There had been interference with the applicant’s right to manifest his religion or beliefs, stemming from his multiple criminal convictions and from the failure to propose any form of alternative civilian service. It was apparent that the system of compulsory military service in force in Turkey did not strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, in circumstances where no allowances had been made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society. Lastly, the fact that the applicant had been demobilised did nothing to alter the findings outlined above. Although he faced no further risk of prosecution (in theory, he could have faced proceedings for the rest of his life), he had been demobilised only because of the onset during his military service of a psychological disorder. This further demonstrated the seriousness of the interference complained of.
Violation of articles 3, 6 para 1, and 9.

Recognition of CO Recognised
Repeated punishment Recognised
Case of Tsaturyan v. Armenia (Application no. 37821/03) 10/01/2012

The applicant is a Jehovah’s Witness. From 1997 he attended various Jehovah’s Witnesses religious services.(...)
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.

Recognition of CO Recognised
Case of Bukharatyan v. Armenia (Application no. 37819/03) 10/01/2012

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. (…)
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.(...)
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.

Length/terms of service Recognised
Case of Erçep v. Turkey (Application no. 43965/04) 22/11/2011

The applicant was a member of the Jehovah’s Witnesses, a religious group whose beliefs included opposition to military service, irrespective of any requirement to carry weapons. The applicant’s objections had therefore been motivated by genuinely held religious beliefs which were in serious and insurmountable conflict with his obligations in that regard. The system of compulsory military service applicable in Turkey imposed obligations on citizens that were liable to have serious consequences for conscientious objectors. It made no provision for exemption on grounds of conscience and resulted in heavy criminal penalties for persons who, like the applicant, refused to perform their military service. Hence, the interference complained of stemmed not just from the fact that the applicant had been convicted on numerous occasions, but also from the absence of any alternative form of service. Conscientious objectors had no option but to refuse to enrol in the army if they wished to remain true to their beliefs. In doing so they laid themselves open to a kind of “civil death” because of the numerous prosecutions which the authorities invariably brought against them and the cumulative effects of the resulting criminal convictions, the continuing cycle of prosecutions and prison sentences and the possibility of facing prosecution for the rest of their lives. Such a system failed to strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, without any allowances being made for the dictates of his conscience and beliefs, could not be regarded as a measure necessary in a democratic society.
Conclusion: violation (unanimously).

Recognition of CO Recognised
Case of Bayatyan v. Armenia (Application no. 23459/03) 07/07/2011

A Jehovah’s Witness, Mr Bayatyan refused to perform military service for conscientious reasons when he became eligible for the draft in 2001, but was prepared to do alternative civil service. The authorities informed him that since there was no law in Armenia on alternative service, he was obliged to serve in the army. He was convicted of draft evasion and sentenced to prison. Mr Bayatyan complained that his conviction violated his rights under Article 9 and submitted that the Article should be interpreted in the light of present-day conditions, namely the fact that the majority of Council of Europe Member States had recognised the right of conscientious objection.

The Court found a violation of Article 9, taking into account that there existed effective alternatives capable of accommodating the competing interests involved in the overwhelming majority of European States and that Mr Bayatyan’s conviction had happened at a time when Armenia had already pledged to introduce alternative service.

Recognition of CO Recognised
Case of Ülke v. Turkey (Application no. 39437/98) 24/01/2006

Mr Ülke refused to do his military service, on the ground that he had firm pacifist beliefs, and publicly burned his call-up papers at a press conference. He was initially convicted of inciting conscripts to evade military service and, having been transferred to a military regiment, repeatedly convicted for his refusals to wear a military uniform. He served almost two years in prison and later hid from the authorities.
The Court found a violation of Article 3 (prohibition of inhuman and degrading treatment), holding in particular that the applicable legal framework did not provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one’s beliefs. Because of the nature of the legislation Mr Ülke ran the risk of an interminable series of prosecutions and criminal convictions. The constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service.

Repeated punishment Recognised
Case of Stefanov v. Bulgaria (Application no. 32438/96) – Friendly settlement 03/05/2001

The case was struck of the list after a friendly settlement reached between Mr Stefanov and the Government of Bulgaria, which included that “all criminal proceedings and judicial sentences in Bulgaria of Bulgaria citizens since 1991 (especially but not limited to [Mr I. S. and three other applicants in other cases]) for refusing military service by virtue of their individual conscientious objection but who were willing at the same time to perform alternative civilian service shall be dismissed and all penalties and/or disabilities heretofore imposed in these cases shall be eliminated as if there was never a conviction for a violation of the law, thus the Council of Ministers of the Republic of Bulgaria undertakes the responsibility to introduce draft legislation before the National Assembly for a total amnesty for these cases”.

Recognition of CO Recognised
Case of Thlimmenos v. Greece (Application no. 34369/97) 06/04/2000

A Jehovah’s Witness, Mr Thlimmenos was convicted of a felony offence for having refused to enlist in the army at a time when Greece did not offer alternative service to conscientious objectors to military service. A few years later he was refused appointment as a chartered accountant on the grounds of his conviction despite his having scored very well in a public competition for the position in question.
The Court found a violation of Article 14 in conjunction with Article 9, holding that Mr Thlimmenos’ exclusion from the profession of chartered accountant was disproportionate to the aim of ensuring appropriate punishment of persons who refuse to serve their country, as he had already served a prison sentence for this offence.

Repeated punishment Recognised

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