ITEMID: 001-23248
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: R. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr R, is a United Kingdom national, who was born in 1931 and lives in Hampton. He is represented before the Court by Adams Delmar Solicitors, Hampton, Middlesex.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 December 1997, the applicant’s daughter S. reported to the police that the applicant had interfered with her children X. and Y. At the same time, the applicant’s stepson J. reported that the applicant had abused him during his childhood.
On 8 January 1998, the applicant was arrested. He was charged the same day with two offences of indecent assault against his grandson X. and his stepson J. On or about 20 March 1998, the prosecution submitted a revised indictment containing 19 counts (1-13 concerning J., 14-17 concerning X. and 18-19 concerning Y.).
On 16 October 1998, the judge ordered that the indictment be severed in relation to counts 1-13 (“the second trial”) and counts 14-19 (“the first trial”).
On 4 November 1998, the first trial commenced. On 13 November 1998, the jury returned a unanimous not guilty verdict in relation to counts 18 and 19 but were unable even to reach a majority verdict on counts 14-17 concerning the applicant’s grandson X.
On 15 January 1999, the prosecution formally offered no evidence on counts 14-17 and the judge directed the jury to acquit the applicant. The applicant made an application for reimbursement of his costs pursuant to section 16(2) of the Prosecution of Offences Act 1985. The judge ruled that the matter of costs should be dealt with at the conclusion of the second trial.
On 14 June 1999, the second trial began before the same judge. The jury returned unanimous not guilty verdicts on all 13 counts.
On 30 June 1999, the defence made an application for reimbursement of costs for both trials (altogether some GBP 64,400). In his decision the same day, the judge rejected the application for costs, stating as follows:
“I have a discretion, and one of the matters that I have to bear in mind is this: has this defendant contributed to the prosecution that was instigated against him? I say this: so far as the grandson is concerned, the defendant took it upon himself to instruct the grandson in certain sexual matters, which in my view were no concern of his at all but were entirely a matter for the mother.
So far as the son is concerned we have heard in the course of the trial certain sexual matters that the defendant himself said took place between he and his son – using language as neutrally as possible, episodes that the defendant described I consider to be bizarre – and I have in mind the sexual contact that the defendant took place between himself and his son.
Looking at this matter, therefore in the round, I am in no doubt that the defendant himself has contributed by his own behaviour and his own conduct to the prosecution that was instigated against him.
Accordingly the applications for costs are refused.”
Counsel for the applicant sought to correct the judge concerning the “sexual training” that the applicant had allegedly provided to his grandson (six years old at the time), asserting that the evidence was that the applicant had sought to discourage his grandson from playing with his genitals. The judge responded:
“But nevertheless, it is my view that the defendant’s behaviour was entirely inappropriate, if there was an, shall we say correction or help needed, it was no matter for him – it was a matter for the child’s mother.”
On 11 September 2000, an application was made to the Crown Court for reconsideration of the award of costs. A different judge held that he had no power to interfere with the decision and there was no power for the Court of Appeal to review the matter either.
Section 16 (2) of the Prosecution of Offences Act 1985 provides insofar as relevant:
“Where-
...
(b) any person is tried on indictment and acquitted on any count in the indictment;
the Crown Court may make a defendant’s costs order in favour of the accused.”
On 3 May 1991, Lord Lane CJ gave a Practice Direction of the Court of Appeal (Criminal Division) concerning costs in criminal proceedings:
“In the Crown Court.
2.2. Where a person ... has been acquitted on any count in the indictment, the court may make a defendant’s costs order in his favour. Such an order should usually be made ... unless there are positive reasons for not doing so. Examples of such reasons are: (a) the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case is stronger than it is ....” (Practice Direction (Crime: Costs) [1991] 1 WLR 498).
The right of appeal to the Court of Appeal (Criminal Division) is against conviction or sentence pursuant to section 9 (1) of the Criminal Appeal Act 1968. As the applicant was acquitted, he had no such right of appeal.
Section 29(3) of the Supreme Court Act 1981 provides that the High Court has the same powers of judicial review over the Crown Court as over an inferior court save in respect of the Crown Court’s
“jurisdiction in matters relating to trial on indictment”.
In the case of Re Sampson [1987] 1 WLR 194, a case concerning a legal aid contribution order at the end of a trial on indictment, Lord Bridge of Harwich said:
“... certain orders made at the conclusion of a trial on indictment are excluded from judicial review as ‘relating to trial on indictment’ not because they affect the conduct of the trial, but rather because they are themselves an integral part of the trial process.”
In that case, the judge’s order could not, therefore, be judicially reviewed. In the case of Re Ashton and Others ([1993] 2 WLR 846), the House of Lords rejected a suggestion that the above proposition in Re Sampson was wrong.


ITEMID: 001-4655
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GONZALEZ v. SPAIN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a US citizen, born in 1962. At the time when he introduced his application, he was in custody in Madrid pending his extradition to the USA.
He is represented before the Court by Mrs Dulce Fernández Martín, a lawyer practising in Madrid.
On 15 January 1993 the applicant was charged with conspiracy to import cocaine and attempting to import cocaine by the Federal Court for the Southern District of Florida. The district attorney and the applicant signed an agreement to the effect that the applicant would plead guilty to the first charge, would be discharged on the second and would cooperate with the district attorney’s office by acting as an undercover agent in groups of cocaine traffickers. He was then released on bail and ordered to appear before the court to be sentenced on 4 January 1994. However, he did not appear. On 2 February 1994 a warrant for the applicant’s arrest was issued by the Federal judge.

Further proceedings had also been brought against the applicant before the Eleventh Judicial Circuit Court for Dade County, Florida, on 12 charges including armed robbery and kidnapping. On 1 March 1994 the judge of this court issued a warrant for the applicant’s arrest.

The applicant was arrested in Madrid, Spain, on 5 February 1997 pursuant to the international arrest warrant issued by the Federal Court for the Southern District of Florida. The warrant requested the applicant’s detention and extradition to the USA to be tried for drug trafficking.

Following the applicant’s arrest in Madrid, the Central Investigating Court (Juzgado Central de instrucción) no. 2 of the Audiencia Nacional, by a decision of 6 February 1997, ordered the applicant’s detention pursuant to the relevant provisions of the law of 21 March 1985 on extradition and the Extradition Treaty between Spain and the USA. The court added that his detention would become invalid if a formal extradition request was not submitted within 45 days from the day of the notification to the USA embassy, and that that period was to begin to run on the day of the arrest.
On the same day, 6 February 1997, the Central Investigating Court notified the Spanish Ministry of Foreign Affairs of the applicant’s detention. On 14 February 1997 the Ministry of Foreign Affairs notified the USA Embassy.

On 14 March 1997 the Spanish Foreign Ministry received a note from the Governor of Florida , requesting that the applicant be detained and handed over to authorised agents so that he could be taken to America and punished according to the law.
The Embassy of the United States presented a Verbal Note dated 24 March 1997 requesting the applicant’s extradition. The mandatory extradition documents were received on 1 April 1997, including decisions from the US District Court for the Southern District of Florida and from the Eleventh Judicial Circuit Court for Dade County, Florida.
On 26 March 1997 the Central Investigating Court of the Audiencia Nacional extended the applicant’s detention for 40 days .
On 25 April 1997 the Spanish Council of Ministers authorised the continuation of the extradition proceedings.
Appealing against the decision of 26 March 1997, the applicant requested the Audiencia Nacional to order his release as the mandatory extradition documents had not been received within the time laid down by law. The Audiencia Nacional, by a decision of 9 April 1997, rejected this request. The applicant lodged an appeal (recurso de reforma) that was also dismissed by the same court on 10 April 1997. The applicant appealed (recurso de queja) to the Audiencia Nacional, which rejected his appeal by a judgment of 26 September 1997. Finally, on 24 October 1997, the applicant lodged an appeal de amparo with the Constitutional Court on the grounds of violation of Articles 17 (right to liberty) and 24 (fair trial) of the Spanish Constitution.
On 30 June 1997 the applicant, relying on Article 13 of the Law on extradiction from Spain, had requested the Audiencia Nacional to obtain from the American authorities additional information relating to the agreement concluded between the district attorney and himself. On 18 July 1997 the Audiencia Nacional had rejected this request as it considered the requested information to be irrelevant to the proceedings.
On 10 November 1997 the applicant requested the Audiencia Nacional to declare the extradition request inadmissible on the grounds that the information provided by the American authorities was biased and said nothing of the agreement signed between the applicant and the district attorney, that the formalities had not been complied with, that there was no evidence of the applicant’s participation in one of the offences and that there was a risk to his life on account of threats received from drug traffickers’ groups. The applicant also sought leave to submit certain evidence for the next hearing. On 1 December 1997, the Audiencia Nacional rejected this request for the same reasons as those given in its decision of 18 July 1997.
By a decision of 31 March 1998, the Central Investigating Court no. 2 of the Audiencia Nacional found, inter alia, that the conditions regarding documentation for the purposes of mandatory extradition under the Extradition Treaty between Spain and USA had been met. It indicated that both arrest warrants were good and that the Federal court had even convicted the applicant. The Court added :
“ ...there is no doubt about the existence of the agreement (between the applicant and the district attorney)... the applicant broke it since he did not appear before the court to receive sentence... therefore only if the agreement is still valid in accordance with the laws of the requesting State (USA) ....will its content apply.
(...)
The applicant’s reasoning that he acted as an undercover agent ... and that he had to leave his country because his life was in danger, cannot be considered by the court, as they are facts irrelevant to the extradition proceedings.
(...)
The applicant alleged a formal defect... as he was detained on 5 February 1997 and the extradition request was received on 24 March 1997, and therefore after the 45-day period prescribed by the treaty had expired ... the day to start counting the period was not, as alleged by the applicant, the day of arrest, but the day of notification of the arrest to the embassy ...
(...) ”
The Court then decided:
“ To declare the extradition (of Avelino Alexis Gonzalez) admissible in order to : A) Be sentenced for the offences of which he was found guilty by the Florida Federal Court... or, if the agreement between the district attorney and the person requested is not valid, to be tried for the facts of charge no.1 and for the facts corresponding to charge no. 2 (arrest warrant of 3.2.94); B) Be tried for the facts for which proceedings were brought against him before the Eleventh Circuit Court of the Dade County (arrest warrant of 1.3.94). Extradition is declared admissible provided that, if the extradited person is sentenced to life imprisonment, imprisonment could not be indefinite or for the whole life...”
On 8 April 1998 the applicant lodged an appeal (recurso de suplica) against the Audiencia Nacional’s decision of 31 March 1998. The Criminal Chamber of the Audiencia Nacional dismissed the appeal by a decision of 2 June 1998, stating, inter alia :
“The reasons alleged by the applicant to justify his leaving the country cannot be taken into account when deciding on the admissibility of the extradition request ... If the alleged risk is genuine, the applicant should seek protection from the authorities of the country concerned...

(...)
The 45-day period should start from the day of the notification of the arrest... to the embassy... regardless of the fact that the State had been informed of the detention through INTERPOL. Moreover, non-compliance with this 45-day period could be relevant with regard to the decision of imprisonment, but not for declaring the extradition request inadmissible.”
Replying to the applicant’s argument about the illegality of the international arrest warrant, the Court stated :
“(...)
Although in the notification of the detention, INTERPOL stated that the arrest warrant was dated 15 January 1993, in the communication from the American authorities it appears that this date corresponds to the day of the trial ... and the arrest warrant was issued on 2 February 1994. It is also reported that on 14 January 1993 proceedings were brought against the applicant and on 1 March 1994 the judge of the Eleventh Judicial Circuit Court for Dade County issued a warrant for his arrest.”
On 25 June 1998 the applicant lodged an appeal de amparo with the Spanish Constitutional Court against the judgment of 2 June 1998, alleging violation of Articles 15 (right to life), 17 (right to liberty) and 24 (fair trial) of the Spanish Constitution.
On 23 June 1997 the applicant applied to the Audiencia Nacional arguing that the requesting State (the USA) should give formal, concrete and binding guarantees on the maximum duration of the sentence to be imposed on the applicant and that, if he was convicted, he should be imprisoned in a special prison for collaborators of the government. This application was rejected by the Audiencia Nacional on 14 July 1998 as it considered that the question raised had already been dealt with in its decision of 31 March 1998. On 20 July 1998 the applicant lodged a second appeal (recurso de súplica) with the same arguments. The applicant submitted that the judgment of 31 March 1998 was not sufficient as it only set generic conditions. Moreover, relying on Article 4 of the Law, on extradition from Spain, the applicant submitted that it was unlawful to declare extradition admissible as life imprisonment constituted inhuman and degrading treatment. The appeal was dismissed by a decision of 30 July 1998. The Criminal Chamber of the Audiencia Nacional concluded :

“ ...the decision declaring extradition admissible establishes as a condition that if the court of the requesting State (the USA) orders life imprisonment, it should not be for whole life. As the USA and Spain have signed an extradition treaty, signature is considered a sufficient guarantee that the USA will comply with the commitment contained in that decision...”
On 17 August 1998 the applicant lodged an appeal de amparo with the Constitutional Court, arguing that the refusal of the Audiencia Nacional to request the US authorities to give concrete and formal guarantees in the extradition proceedings constituted a violation of Articles 15 (right to life), 24 (fair trial) and 25 (imprisonment to be oriented towards re-education and social rehabilitation) of the Spanish Constitution.
The appeals de amparo were rejected as being manifestly ill-founded by three decisions delivered by the Constitutional Court on 28 and 30 September 1998. Concerning the applicant’s complaint about the risks he would run if extradited, the Constitutional Court stated that the hypothetical threats deriving from his former relations with criminal organisations were irrelevant since he was to be delivered to the US Authorities who would be responsible for his safety.
On 22 September 1998 the applicant asked the European Commission of Human Rights to apply Rule 36 of its Rules of Procedure and ask the Spanish Government to stay the execution of the extradition order. By a decision of the same day the President of the Commission rejected the request.
On 13 January 1999 the applicant was extradited to the United States, where he is imprisoned in the Miami Federal Centre of Detention.


ITEMID: 001-95386
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BAYATYAN v. ARMENIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 9
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 7. The applicant was born in 1983 and lives in Yerevan.
8. The applicant is a Jehovah's Witness. From 1997 he attended various Jehovah's Witnesses religious services and he was baptised on 18 September 1999 at the age of 16.
9. On 16 January 2000 the applicant was registered as a person liable for military service with the Erebuni District Military Commissariat (Էրեբունի համայնքի զինվորական կոմիսարիատ).
10. On 16 January 2001 the applicant, at the age of 17, was called to undergo a medical examination, following which he was declared fit for military service. The applicant became eligible for military service during the 2001 spring draft (April-June).
11. On 1 April 2001, at the outset of the draft, the applicant sent identical letters to the General Prosecutor of Armenia (ՀՀ գլխավոր դատախազ), the Military Commissioner of Armenia (ՀՀ պաշտպանության նախարարության հանրապետական զինկոմիսար) and the Human Rights Commission of the National Assembly (ՀՀ ազգային ժողովին առընթեր մարդու իրավունքների հանձնաժողով), with the following statement:
“I, Vahan Bayatyan, born in 1983, inform you that I have studied the Bible since 1996 and have trained my conscience by the Bible in harmony with the words of Isaiah 2:4, and consciously refuse to perform military service. At the same time I inform you that I am ready to perform alternative civilian service in place of military service.”
12. In early May a summons to appear for military service on 15 May 2001 was delivered to the applicant's home. On 14 May 2001 an officer with the Erebuni Military Commissariat telephoned the applicant's home and asked his mother whether the applicant was aware that he had been called to appear at the Commissariat to commence military service the following day. That same evening, the applicant temporarily moved away from his home in fear of being forcefully taken to the military.
13. On 15 and 16 May 2001 officials from the Commissariat telephoned the applicant's mother, demanding to know his whereabouts. They threatened to take him to the military by force if he did not come voluntarily. On 17 May 2001, early in the morning, the officials came to the applicant's home. His parents were asleep and did not open the door. On the same date, the applicant's mother went to the Commissariat where she stated that the applicant had left home and she did not know when he would come back. The applicant submits that the Commissariat made no further efforts to contact his family.
14. On 29 May 2001 the Parliamentary Commission for State and Legal Affairs (ՀՀ ազգային ժողովի պետական-իրավական հարցերի հանձնաժողով) sent a reply to the applicant's letter of 1 April 2001, stating:
“In connection with your declaration, ... we inform you that in accordance with the legislation of the Republic of Armenia every citizen ... is obliged to serve in the Armenian army. Since no law has yet been adopted in Armenia on alternative service, you must submit to current law and serve in the Armenian army.”
15. In early to mid-June 2001 the applicant returned home, where he lived until his arrest in September 2002.
16. On 12 June 2001 the Parliament declared a general amnesty which applied only to those who had committed crimes before 11 June 2001 and was subject to implementation until 13 September 2001.
17. On 26 June 2001 the Erebuni Military Commissar (Էրեբունի համայնքի զինկոմիսար) sent notice to the Erebuni District Prosecutor (Էրեբունի համայնքի դատախազ) that the applicant had failed to appear for military service on 15 May 2001 and was intentionally avoiding service in the army.
18. During July and on 1 August 2001 the applicant, together with his father and his defence counsel, went on several occasions to the District Prosecutor's Office to inquire with the relevant investigator about his situation and to discuss the forthcoming trial.
19. On 1 August 2001 the investigator instituted criminal proceedings on account of the applicant's draft evasion. According to the applicant, the superior prosecutor refused to bring charges against him until further investigation had been carried out. On 8 August 2001 the applicant, who apparently wanted to benefit from the above amnesty act, complained about this to the General Prosecutor's Office (ՀՀ գլխավոր դատախազություն). He received no reply to this complaint.
20. On 1 October 2001 the investigator issued five orders in respect of the applicant: (1) to bring a charge of draft evasion against the applicant; (2) to apply to court for authorisation of the applicant's detention on remand; (3) to declare the applicant a fugitive and institute a search for him; (4) to apply to court for authorisation to monitor the applicant's correspondence; and (5) to suspend the proceedings until the applicant had been found. This last order stated:
“... since, having undertaken investigative and operative search measures, the attempts to find the wanted [applicant] within two months ... have been unsuccessful and his whereabouts are unknown, ... [it is necessary] to suspend the investigation ... and ... to activate operative search measures to find the accused.”
21. Neither the applicant nor his family were notified of these orders, despite the fact that since mid-June 2001 he had been living at the family home and that he had met with the investigator on several occasions in July-August 2001.
22. On 2 October 2001 the Erebuni and Nubarashen District Court of Yerevan (Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան) authorised the monitoring of the applicant's correspondence and his detention on remand. Neither the applicant nor his family were notified about these decisions, and the investigating authority made no attempts to contact them until his arrest in September 2002.
23. On 26 April 2002 the Convention entered into force in respect of Armenia.
24. On 4 September 2002, while the applicant was at work, two police officers came to his family home, informing his parents that he was on the wanted list and inquiring about his whereabouts.
25. On 5 September 2002 the police officers returned and accompanied the applicant to a local police station, where they drew up a record of the applicant's voluntary surrender which stated that the applicant, having found out that he was on the wanted list, decided to appear at the police station. On the same date, the applicant was placed in the Nubarashen detention facility.
26. On 9 September 2002 the investigating authority resumed the criminal proceedings against the applicant.
27. On 11 September 2002 the applicant was presented with the 1 October 2001 charge for the first time. During his questioning on the same date the applicant submitted that he consciously refused to perform military service because of his religious beliefs but was ready to perform alternative civilian service instead.
28. On the same date, the applicant and his defence counsel were granted access to the case file. The indictment was finalised on 18 September 2002 and approved by the prosecutor on 23 September 2002.
29. On 22 October 2002 the applicant's trial commenced in the Erebuni and Nubarashen District Court of Yerevan. The trial was adjourned until 28 October 2002 because the applicant had not been served with a copy of the indictment.
30. On 28 October 2002, at the court hearing, the applicant made the same submissions as during his questioning. On the same date, the Erebuni and Nubarashen District Court found the applicant guilty as charged and sentenced him to one year and six months in prison.
31. On 29 November 2002 the prosecutor lodged an appeal against this judgment, seeking a harsher punishment. The appeal stated:
“The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as one of Jehovah's Witnesses his faith did not permit him to serve in the armed forces of Armenia.
[The applicant] is physically fit and is not employed.
I believe that the court issued an obviously mild punishment and did not take into consideration the degree of social danger of the crime, the personality of [the applicant], and the clearly unfounded and dangerous reasons for [the applicant's] refusal of [military] service.”
32. On 19 December 2002 the applicant's defence counsel lodged objections in reply to the prosecutor's appeal, in which he argued that the judgment imposed was in violation of the applicant's freedom of conscience and religion guaranteed by Article 23 of the Constitution, Article 9 of the Convention and other international instruments. He further argued that the absence of a law on alternative civilian service could not serve as a justification for imposing criminal liability on a person refusing military service for reasons of conscience.
33. On 24 December 2002, in the proceedings before the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան), the prosecutor argued, inter alia, that a harsher sentence should be imposed also because of the fact that the applicant had hidden from the investigation. The applicant submits that during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service: both the prosecutor and one of the judges offered to terminate his case if he dropped his objection and went to perform his military duty.
34. On the same date, the Court of Appeal decided to grant the prosecutor's appeal and increased the applicant's sentence to two and a half years, stating that:
“The court of first instance, when sentencing [the applicant], took into account that [the applicant] had committed not a grave crime, that he was young, he had not been guilt-stained in the past, that he had confessed his guilt, had actively assisted in the disclosure of the crime and had sincerely repented.
However, in the course of the appeal proceedings it was established that not only did [the applicant] not accept his guilt, nor did he repent of having committed the crime, not only did he not assist in the disclosure of the crime, but he hid from preliminary investigation and his whereabouts were unknown, for which reason a search for him was initiated.
Based on these circumstances, as well as taking into account the nature, motives and degree of social danger of the crime, the Court of Appeal considers that the prosecutor's appeal must be granted, and a harsher and adequate punishment must be imposed on [the applicant].”
35. On an unspecified date, the applicant's defence counsel brought a cassation appeal against this judgment, in which he raised arguments similar to the ones made in his objections of 19 December 2002. He reiterated the applicant's willingness to perform alternative civilian service and submitted that, instead of spending two and a half years in prison, the applicant could have done socially useful work. According to him, such a possibility was envisaged under Section 12 of the Military Liability Act («Զինապարտության մասին» ՀՀ օրենք). Furthermore, he argued that the principle of alternative service was enshrined in Section 19 of the Freedom of Conscience and Religious Organisations Act («Խղճի ազատության և կրոնական կազմակերպությունների մասին» ՀՀ օրենք), and the absence of appropriate implementation mechanisms could not be blamed on the applicant.
36. On 24 January 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld the judgment of the Court of Appeal, finding, inter alia, that the rights guaranteed under Article 23 of the Constitution were subject to limitations under its Article 44 such as in the interests of State security, public safety and the protection of public order. Similar limitations were envisaged also by Article 9 § 2 of the Convention.
37. On 22 July 2003 the applicant was released on parole after having served about ten and a half months of his sentence.
38. The relevant provisions of the Constitution read as follows:
“Everyone has the right to freedom of thought, conscience and religion.”
“The fundamental rights and freedoms of man and citizen enshrined in Articles 23-27 of the Constitution can be restricted only by law if necessary for the protection of State security and public safety, the public order, the health and morals of society, and the rights, freedoms, honour and good name of others.”
“Every citizen is obliged to participate in the defence of the Republic of Armenia in accordance with a procedure prescribed by law.”
39. The relevant provisions of the Criminal Code read as follows:
“Evasion of a regular call-up to active military service is punishable by imprisonment for a period of one to three years.”
40. The relevant provisions of the Military Liability Act read as follows:
“1. Male conscripts and officers of the first category reserve whose age is between 18 and 27 [and] who have been found physically fit for military service in peacetime shall be drafted to compulsory military service.”
“1. [A citizen] can be exempted from compulsory military service: (a) if the national recruiting commission recognises him to be unfit for military service on account of poor health, striking him off the military register; (b) if his father (mother) or brother (sister) perished while performing the duty of defending Armenia or in [the Armenian] armed forces and other troops, and he is the only male child in a family; (c) by a decree of the Government; (d) if he has performed compulsory military service in foreign armed forces before acquiring Armenian citizenship; or (e) he has a science degree (candidate of science or doctor of science) and is engaged in specialised, scientific or educational activities.”
“2. In specific cases the Government defines categories of citizens and particular individuals to be granted deferral from conscription to compulsory military service.”
41. The relevant provisions of the Freedom of Conscience and Religious Organisations Act read as follows:
“All civic obligations envisaged by law apply equally to believing members of religious organisations as they do to other citizens.
In specific cases of contradiction between civic obligations and religious convictions, the matter of discharging one's civic obligations can be resolved by means of an alternative principle, in the procedure prescribed by law, by mutual agreement between the relevant State authority and the given religious organisation.”
42. The relevant provisions of the Act, with their subsequent amendments introduced on 22 November 2004, read as follows:
“1. Alternative service, within the meaning of this Act, is the service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions.
2. Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty, and the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely] the labour service performed outside the armed forces of Armenia.
3. The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive, depreciatory and degrading nature.”
“1. An Armenian citizen, whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, can perform alternative service.”
43. The relevant extract from the Opinion stipulates:
“13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... iv. human rights: ... d. 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.”
44. The relevant extract from the Recommendation provides:
“2. The right of conscientious objection is a fundamental aspect of the right to freedom of thought, conscience and religion enshrined in the Universal Declaration of Human Rights and the European Convention on Human Rights.
3. Most Council of Europe member states have introduced the right of conscientious objection into their constitutions or legislation. There are only five members states where this right is not recognised.”
45. The relevant provisions of the Charter read as follows:
“1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.”
NON_VIOLATED_ARTICLES: 9