ITEMID: 001-105611
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF BAYATYAN v. ARMENIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 9;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Jean-Paul Costa;John Hedigan;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 9. The applicant was born in 1983 and lives in Yerevan.
10. 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.
11. 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).
12. 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).
13. 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 I 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.”
14. 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 official of the Erebuni District 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 for fear of being forcibly taken into the military.
15. 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 into 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. According to the applicant, the Commissariat made no further efforts to contact his family.
16. On 29 May 2001 the Commission for State and Legal Affairs of the National Assembly (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 the current law and serve in the Armenian army.”
17. In early to mid-June 2001 the applicant returned home, where he lived until his arrest in September 2002.
18. On 12 June 2001 the National Assembly declared a general amnesty which applied only to those who had committed crimes before 11 June 2001 and was to remain in force until 13 September 2001.
19. On 26 June 2001 the Erebuni Military Commissar (Էրեբունի համայնքի զինկոմիսար) gave notice to the Erebuni District Prosecutor (Էրեբունի համայնքի դատախազ) that the applicant had failed to report for military service on 15 May 2001 and was intentionally avoiding service in the army.
20. 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 enquire with the relevant investigator about his situation and to discuss the forthcoming proceedings.
21. On 1 August 2001 the investigator instituted criminal proceedings under Article 75 of the Criminal Code on account of the applicant’s draft evasion. According to the applicant, the investigator’s superior, the prosecutor, refused to bring charges against him until further investigations had been carried out. On 8 August 2001 the applicant, who apparently wanted to benefit from the above amnesty, complained about this to the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն). He received no reply to this complaint.
22. On 1 October 2001 the investigator issued five decisions in respect of the applicant: (1) to bring a charge of draft evasion against the applicant under Article 75 of the Criminal Code; (2) to apply to the court for authorisation for the applicant’s detention on remand; (3) to declare the applicant a fugitive and institute a search for him; (4) to apply to the 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 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 the search measures aimed at finding the accused.”
23. Neither the applicant nor his family were notified of these decisions, 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 and August 2001.
24. 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 attempt to contact them until the applicant’s arrest in September 2002.
25. On 26 April 2002 the Convention came into force in respect of Armenia.
26. On 4 September 2002, while the applicant was at work, two police officers went to his family home, informed his parents that he was on the wanted list and enquired about his whereabouts.
27. 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.
28. On 9 September 2002 the investigating authority resumed the criminal proceedings against the applicant.
29. On 11 September 2002 the applicant was served with the 1 October 2001 charge (see paragraph 22 above) 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.
30. On the same date, the applicant and his defence counsel were granted access to the case file. The bill of indictment was finalised on 18 September 2002 and approved by the prosecutor on 23 September 2002.
31. 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.
32. On 28 October 2002, at the court hearing, the applicant made the same submissions as during his questioning (see paragraph 29 above).
33. On the same date, the Erebuni and Nubarashen District Court of Yerevan found the applicant guilty as charged and sentenced him to one year and six months in prison.
34. On 29 November 2002 the prosecutor lodged an appeal against this judgment, seeking a heavier punishment. The appeal stated:
“The [applicant] did not accept his guilt, explaining that he refused [military] service having studied the Bible, and as a Jehovah’s Witness 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 imposed an obviously lenient 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.”
35. On 19 December 2002 the applicant lodged objections in reply to the prosecutor’s appeal in which he argued that the judgment imposed was in violation of his freedom of conscience and religion guaranteed by Article 23 of the Armenian 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.
36. 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 heavier sentence should be imposed also because the applicant had gone into hiding during the investigation. According to the applicant, during the appeal hearing pressure was put on him to abandon his religious beliefs regarding military service; in particular, both the prosecutor and one of the judges offered to terminate his case if he dropped his objection and performed his military duty.
37. 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 offence [the applicant] had committed was not a grave one, that he was young, he had a clean record, he had confessed his guilt, he had actively assisted in the disclosure of the crime and he had sincerely repented.
However, in the course of the appeal proceedings it was established that not only does [the applicant] not accept his guilt, but he does not regret having committed the crime; not only did he not assist in the disclosure of the offence, but he hid from the investigation and his whereabouts were unknown, so a search for him had to be 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 heavier and adequate punishment must be imposed on [the applicant].”
38. On an unspecified date, the applicant lodged an appeal on points of law against that judgment, in which he raised arguments similar to the ones made in his objections of 19 December 2002 (see paragraph 35 above). He reiterated his willingness to perform alternative civilian service and submitted that, instead of spending two and a half years in prison, he could have done socially useful work. According to him, such a possibility was envisaged under section 12 of the Military Liability Act (see paragraph 43 below). The applicant further argued that the principle of alternative service was enshrined in section 19 of the Freedom of Conscience and Religious Organisations Act (see paragraph 44 below), and the absence of appropriate implementation mechanisms could not be blamed on him.
39. 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 by Article 23 of the Constitution were subject to limitations under its Article 44 (see paragraph 41 below), in the interests, for example, of State security, public safety and the protection of public order. Similar limitations were also envisaged by Article 9 § 2 of the Convention.
40. On 22 July 2003 the applicant was released on parole after having served about ten and a half months of his sentence.
41. 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 the citizen enshrined in Articles 23 to 27 of the Constitution can be restricted only by law if necessary for the protection of State security and public safety, public order, public health and morals and the rights, freedoms, honour and reputation of others.”
“Every citizen shall participate in the defence of the Republic of Armenia in accordance with the procedure prescribed by law.”
42. 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.”
43. The relevant provisions of the Military Liability Act read as follows:
“(1) Military liability is the constitutional obligation of citizens to participate in the defence of the Republic of Armenia.”
“(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 for compulsory military service.”
“(1) [A citizen] may 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 and strikes him off the military register; (b) if his father (mother) or brother (sister) died while performing the duty of defending Armenia or in [the Armenian] armed forces and other troops, and he is the only male child in the family; (c) by government decree; (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 may define categories of citizens and particular individuals to be granted deferral from conscription into compulsory military service.”
44. The relevant provisions of the Freedom of Conscience and Religious Organisations Act read as follows:
“The Supreme Soviet of the Republic of Armenia adopts this law on freedom of conscience and religious organisations, ... being guided by the principles of human rights and fundamental freedoms established in international law and faithful to the provisions of Article 18 of the International Covenant on Civil and Political Rights ...”
“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, according to the procedure prescribed by law, by mutual agreement between the relevant State authority and the given religious organisation.”
45. The relevant provisions of the Alternative Service Act, with their subsequent amendments introduced on 22 November 2004, read as follows:
“(1) Alternative service, within the meaning of this Act, is 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 or the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely] labour service performed outside the armed forces of Armenia.
(3) The purpose of alternative service is to ensure the fulfilment of a civic obligation to the motherland and society and it does not have a punitive, demeaning or 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, may perform alternative service.”
46. It follows from the materials available to the Court on the legislation of the member States of the Council of Europe that almost all the member States which ever had or still have compulsory military service introduced laws at various points recognising and implementing the right to conscientious objection, some of them even before becoming members of the Council of Europe. The earliest was the United Kingdom in 1916, followed by Denmark (1917), Sweden (1920), the Netherlands (1920-23), Norway (1922), Finland (1931), Germany (1949), France and Luxembourg (1963), Belgium (1964), Italy (1972), Austria (1974), Portugal (1976) and Spain (1978).
47. A big wave of recognitions ensued in the late 1980s and the 1990s, when almost all the then or future member States which had not yet done so introduced such a right into their domestic legal systems. These include Poland (1988), the Czech Republic and Hungary (1989), Croatia (1990), Estonia, Moldova and Slovenia (1991), Cyprus, the former Federal Republic of Yugoslavia (which in 2006 divided into two member States: Serbia and Montenegro, both of which retained that right) and Ukraine (1992), Latvia (1993), Slovakia and Switzerland (1995), Bosnia and Herzegovina, Lithuania and Romania (1996), Georgia and Greece (1997) and Bulgaria (1998).
48. From the remaining member States, “the former Yugoslav Republic of Macedonia”, which as early as in 1992 had provided for a possibility to perform non-armed military service, introduced a genuine alternative civilian service in 2001. Russia and Albania, which in 1993 and 1998 respectively had constitutionally recognised the right to conscientious objection, fully implemented it through laws in 2004 and 2003 respectively. Azerbaijan constitutionally recognised the right to conscientious objection in 1995 but no implementing laws have yet been introduced. Conscientious objectors are not recognised in Turkey.
49. In most of the member States where conscientious objection was or is recognised and fully implemented, conscientious objector status could or can be claimed on the basis not only of religious beliefs but also of a relatively broad range of personal beliefs of a non-religious nature, the only exceptions being Romania and Ukraine, where the right to claim conscientious objector status is limited to religious grounds alone. In some member States, the right to claim conscientious objector status only applied or applies during peacetime, as in Poland, Belgium and Finland, while in others, like Montenegro and Slovakia, the right to claim such status by definition applies only in time of mobilisation or war. Finally, some member States, like Finland, allow certain categories of conscientious objectors to be exempted also from alternative service.
50. On 28 June 2000 the Parliamentary Assembly of the Council of Europe adopted its Opinion no. 221 on Armenia’s application to join the Council of Europe. The Parliamentary Assembly concluded its opinion by recommending the Committee of Ministers of the Council of Europe to invite Armenia to become a member, on the understanding that a number of commitments would be fulfilled within stipulated time-limits. The relevant extract from the opinion reads as follows:
“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: ... 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; ...”
51. The right to conscientious objection was first mentioned by the Parliamentary Assembly as early as in 1967 in its Resolution 337 (1967), in which it laid down the following basic principles:
“1. Persons liable to conscription for military service who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives, refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service.
2. This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic Rule of Law States which are guaranteed in Article 9 of the European Convention on Human Rights.”
52. Based on this Resolution, the Parliamentary Assembly adopted Recommendation 478 (1967), calling upon the Committee of Ministers to invite member States to bring their national legislation as closely as possible into line with the basic principles. The Parliamentary Assembly further reiterated and developed the basic principles in its Recommendation 816 (1977) and Recommendation 1518 (2001). In the latter Recommendation, it stated that the right to conscientious objection was a “fundamental aspect of the right to freedom of thought, conscience and religion” enshrined in the Convention. It pointed out that only five member States had not yet recognised that right and recommended the Committee of Ministers to invite them to do so.
53. In 2006 the Parliamentary Assembly adopted Recommendation 1742 (2006) concerning the human rights of members of the armed forces, calling upon the member States, inter alia, to introduce into their legislation the right to be registered as a conscientious objector at any time and the right of career servicemen to be granted such status.
54. In 1987 the Committee of Ministers adopted Recommendation No. R (87) 8, recommending the member States to recognise the right to conscientious objection and inviting the governments which had not yet done so to bring their national law and practice into line with the following basic principle:
“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 ... [and] may be liable to perform alternative service; ...”
55. In 2010 the Committee of Ministers adopted Recommendation Rec(2010)4, recommending the member States to ensure that any limitations on the right to freedom of thought, conscience and religion of members of the armed forces comply with the requirements of Article 9 § 2 of the Convention, that conscripts have the right to be granted conscientious objector status and that an alternative service of a civilian nature be proposed to them. The explanatory memorandum to this Recommendation noted, in particular:
“The right to conscientious objection has not to date been recognised by the Court as being covered by Article 9 of the Convention. However, the current trend in international fora is to consider it part and parcel of the freedom of conscience and religion.”
56. The principles developed by the Council of Europe bodies were echoed in the Resolutions of the European Parliament of 7 February 1983, 13 October 1989, 11 March 1993 and 19 January 1994. The European Parliament similarly considered that the right to conscientious objection was inherent in the concept of freedom of thought, conscience and religion, as recognised in Article 9 of the Convention, and called upon the member States of the European Union to incorporate the right to conscientious objection as a fundamental right in their legal systems.
57. Article 10 of the Charter of Fundamental Rights of the European Union, which was proclaimed on 7 December 2000 and which came into force on 1 December 2009, provides:
“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.”
58. In its Resolution 1987/46, the United Nations Commission on Human Rights appealed to the States to recognise the right to conscientious objection and to refrain from subjecting to imprisonment persons exercising that right. In its subsequent Resolution 1989/59, the Commission went one step further and itself recognised the right to conscientious objection as a legitimate exercise of the right to freedom of thought, conscience and religion as laid down in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Further Resolutions on the subject – Resolutions 1993/84, 1995/83 and 1998/77 – confirmed and expanded the existing principles. Subsequently, the Commission repeatedly called on States to review their laws and practice in the light of its Resolutions. In Resolution 2004/35, it further encouraged States to consider granting amnesties and restitution of rights for those who had refused to undertake military service on grounds of conscientious objection.
59. The relevant provisions of the ICCPR, which was adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, came into force on 23 March 1976 and was ratified by Armenia on 23 June 1993, read as follows:
“...
3. (a) No one shall be required to perform forced or compulsory labour;
...
(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:
...
(ii) Any service of a military character and, in countries where conscientious objection is recognised, any national service required by law of conscientious objectors; ...”
“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. ...”
60. The UNHRC, the body that monitors implementation of the ICCPR, when examining individual complaints initially took a view that the ICCPR, and in particular its Article 18, did not provide for the right to conscientious objection, especially taking into account Article 8 § 3 (c) (ii). A complaint brought by a Finnish conscientious objector was declared inadmissible on that ground as incompatible with the provisions of the ICCPR (see L.T.K. v. Finland, Communication no. 185/1984, UN doc. CCPR/C/25/D/185/1984, 9 July 1985).
61. The first shift in the UNHRC’s approach took place in its decision of 7 November 1991 in J.P. v. Canada (Communication no. 446/1991, UN doc. CCPR/C/43/D/446/1991), in which it accepted for the first time, albeit obiter, that “Article 18 of the [ICCPR] certainly [protected] the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures”.
62. In 1993 the UNHRC adopted its General Comment no. 22 on Article 18 of the ICCPR, providing, inter alia, the following interpretation of that provision:
“11. ... The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. ...”
63. A further development in the UNHRC’s position occurred in its views adopted on 3 November 2006 in the cases of Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea (Communications nos. 1321/2004 and 1322/2004, UN doc. CCPR/C/88/D/1321-1322/2004, 23 January 2007), in which the UNHRC for the first time had to deal with complaints of two convicted Jehovah’s Witnesses with respect to a country where the right to conscientious objection was not recognised. The UNHRC held as follows:
“8.2. The Committee ... notes that Article 8, paragraph 3, of the Covenant excludes from the scope of ‘forced or compulsory labour’, which is proscribed, ‘any service of a military character and, in countries where conscientious objection is recognised, any national service required by law of conscientious objectors’. It follows that Article 8 of the Covenant itself neither recognises nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of Article 18 of the Covenant, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose.
8.3. ... The authors’ conviction and sentence, accordingly, amounts to a restriction on their ability to manifest their religion or belief. Such restriction must be justified by the permissible limits described in paragraph 3 of Article 18, that is, that any restriction must be prescribed by law and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. ...”
64. The UNHRC went on to conclude that the interference with the applicants’ rights guaranteed by Article 18 of the ICCPR was not necessary and that there had been a violation of that provision.
65. The question of detention of conscientious objectors has also been addressed on several occasions under its individual petitions procedure by the Working Group on Arbitrary Detention which was established in 1991 by the United Nations Commission on Human Rights. Until recently, the main concern of the Working Group was the repeated punishment and incarceration of conscientious objectors, which it found arbitrary on the ground that it violated the principle of ne bis in idem (see, for example, Opinion no. 36/1999 (Turkey) and Opinion no. 24/2003 (Israel)). In 2008 the Working Group went one step further and found a single instance in which a conscientious objector in Turkey had been prosecuted, convicted and deprived of his liberty to have been arbitrary (see Opinion no. 16/2008 (Turkey)).
66. Articles 6 § 3 (b) and 12 of the American Convention on Human Rights are similar to Articles 4 § 3 (b) and 9 of the European Convention.
67. In 1997 and 1998 the Inter-American Commission on Human Rights issued recommendations inviting the member States whose legislation still did not exempt conscientious objectors from military or alternative service to review their legal regimes and make modifications consistent with the spirit of international human rights law through legislative amendments providing for exemptions from military service in cases of conscientious objection.
68. On 10 March 2005 the Inter-American Commission decided on the first individual petition concerning the right to conscientious objection. The Commission found that Article 12 was to be read in conjunction with Article 6 § 3 (b) and concluded that conscientious objection was protected under the American Convention only in countries where it was recognised. In doing so, the Inter-American Commission relied heavily on the case-law of the European Commission of Human Rights and the UNHRC as it existed prior to 2005 (see Cristián Daniel Sahli Vera and Others v. Chile, Case no. 12.219, Report no. 43/05, 10 March 2005, §§ 95-97). This approach was later confirmed by the Inter-American Commission in another case (see Alfredo Díaz Bustos v. Bolivia, Case no. 14/04, Report no. 97/05, 27 October 2005, § 19).
69. On 10 to 11 October 2005 the Ibero-American Convention on Young People’s Rights, which sets out a number of specific rights for individuals aged between 15 and 24 years, was adopted in the framework of the IberoAmerican Youth Organisation. Its Article 12, entitled “Right to conscientious objection”, reads as follows:
“1. Youth have the right to make conscientious objection towards obligatory military service.
2. The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of obligatory military service.
...”
70. The OSCE also took up the question of conscientious objection in 1990. The participating States noted at the Human Dimension Conference that the United Nations Commission on Human Rights had recognised the right to conscientious objection and agreed to consider introducing various forms of alternative service in their legal systems. In 2004 the OSCE prepared the “Guidelines for Review of Legislation Pertaining to Religion or Belief” in which it observed that, although there was no controlling international standard on this issue, the clear trend in most democratic States was to allow those with serious moral or religious objections to military service to perform alternative (non-military) service.
VIOLATED_ARTICLES: 9


ITEMID: 001-75133
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KANAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals, and they all live in Elazığ. They are represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until October 1994 the applicants lived in Şahverdi village in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.
In October 1994 their village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.
On 6 October 1994 one of the applicants, Hıdır Kanar lodged a petition with the District Governor’s office in Ovacık complaining about the burning of his house and belongings on the night of 4 October 1994, requesting the assessment of and compensation for this damage.
On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakemati Kanunu) and decided to send the case file to the executive committee of the Ovacık Administrative Council.
In his petition dated 29 December 1994, the applicant Hıdır Kanar complained to the Tunceli Governor and to the Ministry of Construction and Settlement that, although he lived in a building constructed for earthquake victims, he had been unable to receive government aid.
On 23 June 1995, in reply to the petition of 6 October 1994, the District Governor of Ovacık stated that the villages in the area had not been burned by members of the security forces as alleged by the villagers, but by terrorists wearing military uniform.
In November 2000 the applicant Hıdır Kanar filed a final complaint with the Governor’s and Public Prosecutor’s offices in Ovacık.
On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:
“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.
Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”
The case file does not contain any document submitted by the second applicant, Hüseyin Kanar.
Until October 1994 the applicants all lived in Karaoğlan village, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.
In October 1994 their village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.
On 2 December 1994 one of the applicants, Mr Düzgün Yıldız, who is the village mayor (muhtar), filed a petition with the District Governor’s office in Ovacık, on behalf of the villagers, complaining about the eviction.
On 7 August 1995 he requested a loan from the Agriculture Office in Ovacık to allow the villagers to cultivate their land.
On 15 February 1996 some mayors, including Mr Yıldız, lodged a petition with the Tunceli Office for Construction and Settlement, where they complained of a reimbursement order asking the villagers to pay back government aid previously granted as compensation for their losses in the 1992 earthquake. They demanded the annulment of the reimbursement order on the ground that the villagers had lost all their property during the destruction of their villages.
On 16 August 1996 the mayors petitioned the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament. They requested compensation for their losses.
On 2 February 1999 Mr Yıldız lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission on behalf of the villagers to return to their villages.
In November 2000 the applicants filed a final complaint with the Governor and Public Prosecutor’s offices in Ovacık.
On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:
“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.
Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”
Until October 1994 the applicants lived in the above villages, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.
In October 1994 the villages were forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.
On 25 July 1995 the mayors of the above mentioned villages filed a petition with the General Directorate of Construction and Settlement in the province, demanding government aid.
On 15 February 1996 they also petitioned the Tunceli Office for Construction and Settlement, demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of March 1992, on the ground that they had lost all their property during the destruction of their villages.
On 16 August 1996 they petitioned various authorities, namely the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament. They requested compensation for their losses.
On 2 February 1999 the village mayors lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission for villagers to return to their villages.
On 22 May 1998 the mayor of Halitpınar village issued a press release along with some other villagers and representatives of some associations, denouncing the incidents that had taken place in the villages in their area.
In November 2000 the applicants filed a final complaint with the Governor’s and Public Prosecutor’s offices in Ovacık.
On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:
“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.
Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”
Until October 1994 the applicants lived in the above villages in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.
In October 1994 the villages were forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.
On 15 February 1996 the mayors of the above villages lodged a petition with the Tunceli Office for Construction and Settlement, demanding the annulment of a reimbursement order concerning aid previously granted as compensation following the earthquake of March 1992, on the ground that they had lost all their property during the destruction of their villages.
In 22 May 1998 the mayors, villagers and some associations issued a press release, denouncing the burning of their villages.
On 2 February 1999 the mayor of the Çayüstü village lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission for the villagers to return to their villages.
In November 2000 the applicants filed a final complaint with the Governor’s and Public Prosecutor’s office in Ovacık.
On 18 December 2000 they received the following letter from the Ovacık District Governor, Fikret Çavuş:
“It is established that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against state officers.
Furthermore, I would like to add that the petition which you have filed with us will be considered under the ‘Return to the Village and Rehabilitation Project’.”
Until October 1994 the applicant lived in Kalecik village in the district of Ovacık, in Tunceli, where he owned a house, livestock and land.
In October 1994 his village was forcibly evacuated and destroyed by security forces. The applicant and his family moved to Elazığ where they are currently living.
On 12 December 1994 the applicant petitioned the District Governor’s office complaining about the forced eviction by security forces and asked for compensation.
On 4 January 1995 the mayor of the applicant’s village sent letters to the Governor’s office in Tunceli, to the Ministry of Construction and Settlement, to the Governor’s office in the state of emergency region and to the Prime Minister’s office complaining about the impugned incident.
On 27 March 1996 the applicant sent another letter to the District Governor’s office asking for help.
On 21 November 1996 and 23 July 1997 the applicant sent petitions to the District Governor’s office and to the Ministry of Defence, respectively.
In his third letter dated 7 February 1997 addressed to the District Governor, the applicant complained about the authorities’ refusal to grant him aid.
The applicant filed two more petitions with the District Governor’s office, one dated 21 February 2000 and the other undated.
In his petition of 21 February 2000, the applicant requested permission to return to his village invoking his rights under Article 1 of Protocol No. 1 to the Convention. The District Governor, in a reply dated 5 May 2000, informed the applicant that the authorities were working on a project that would enable the villagers to return to their homes.
On 25 January 2001 the applicant received another letter from the District Governor, drawing attention to the lack of evidence which would allow the authorities to initiate an investigation into the allegation that his house in the Kalecik village had been burned down by security forces.
Until October 1994 the applicants lived in Büyükköy village, in the district of Ovacık, in Tunceli, where they owned houses, livestock and land.
In October 1994 the village was forcibly evacuated and destroyed by security forces. The applicants and their families moved to Elazığ where they are currently living.
Following their eviction, the applicants, a father and his son, complained to the District Governor and to the Public Prosecutor in Ovacık.
The public prosecutor verbally rejected the applicants’ allegations that the security officers had evacuated their village however he continued with taking their statements.
In 1994 the applicants petitioned various administrative authorities, namely the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region and the Prime Minister’s office, complaining about the evacuation of their village and the refusal of the authorities to allow them to return to their homes. The applicants did not receive any reply from these authorities.
In March 2000 the applicants filed a petition with the District Governor in Ovacık. They requested permission to return to their village and compensation for their losses.
On 10 May 2000 the applicants received a letter from the District Governor in reply to their petition. The District Governor informed the applicants that their request would be considered within the context of the “Return to Villages and Rehabilitation Project”.
The investigation carried out by the authorities indicated that the applicants had left their villages on their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-23753
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MURATOVIC v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Sadeta Muratovic, born in 1982, is ethnic Bosnian and lives in Randers, Denmark. She is represented before the Court by Mr Lars Thousig Jensen, a lawyer practising in Viborg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, her parents and two siblings entered Denmark on 20 November 2000 without any travel/identification papers and requested asylum in that while they were living in the village Vitomirica in Kosovo in June 1999 Albanian men subjected them to a violent assault, which included rape of the applicant. The applicant and her family succeeded in fleeing to Montenegro and thereon to Denmark.
On 4 February 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant asylum, a decision which was upheld on appeal by the Refugee Board (Flygtningenævnet) on 19 August 2002. Both instances found it established that the applicant had been subjected to rape and violence in June 1999, but found that the assault should be seen, not so much as a result of the applicant being Bosnian, but in connection with the situation at the relevant time in Kosovo. In this respect it was recalled that under the mandate of the United Nations, the NATO-led international Kosovo Force, KFOR, being responsible for establishing and maintaining security in Kosovo, on 12 June 1999 intervened in the conflict between Serbian and Kosovar Albanian forces, and that subsequent thereto, for a short while, Albanian armed groups took over specific areas.
The Refugee Board stated in addition, that presently the general security situation as to Bosnians in Kosovo had improved according to inter alia UNHCR’s position paper of April 2002, background no. 309, and UNHCR’s and OSCE’s report on ethnic minorities, background no. 313.
Finally, although finding it established that the applicant was affected by the events in June 1999 to the detriment of her mental health, the Board did not find that a concrete danger existed that she would be subjected to persecution if returned. She was ordered to leave the country immediately.
On 5 September 2002 the applicant requested that the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) grant her a residence permit either on humanitarian grounds pursuant to section 9 b of the Aliens Act (Udlændingeloven) or in the alternative due to extraordinary circumstances pursuant to section 9 c of the Aliens Act. In support thereof the applicant submitted medical reports from which it appeared that she suffered inter alia of headache. Also, the applicant submitted a statement of 22 December 2002 by a psychologist, FBN, who found that the applicant was suffering from Post Traumatic Stress Disorder, depression and personality disorder. By statement of 14 January 2003 another psychologist, LK, found the applicant psychological anguished, sad, and restless, and in great need of treatment due to her traumatic war-experiences.
By decision of 14 April 2003 the Ministry of Refugee, Immigration and Integration Affairs refused to grant the applicant a residence permit on humanitarian grounds, since the conditions for granting such under section 9 b of the Aliens Act was not fulfilled, notably since the applicant did not suffer from any serious physical or mental illness. The Ministry noted in that connection that Post Traumatic Stress Disorder, depression and personality disorder were not considered to be illnesses, which alone could justify the granting of a residence permit on humanitarian grounds. Likewise, as regards subjective fear of returning to ones country of origin. The applicant was ordered to leave the country without delay.
On 12 May 2003 the applicant submitted to the Court a statement made by LK on 6 May 2003, according to which subsequent to being refused a residence permit on humanitarian grounds the applicant had expressed strong thoughts of suicide. It appears that this document has not been submitted to the domestic authorities.
The applicant’s application for a residence permit pursuant to section 9 c of the Aliens Act was refused by the Aliens Authorities on 4 June 2003. No appeal was lodged against this decision with the Ministry of Refugee, Immigration and Integration Affairs.
The Aliens Act and Kosovars in Denmark.

According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicant in the present case was not among those evacuees. She entered Denmark herself in November 2000. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”; “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
The applicant in the present case is not covered by section 9 1 (e) of the Aliens Act because she never held a residence permit under the “Kosovo Emergency Act” and she entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – she had the possibility of applying for asylum pursuant to section 7 of the Aliens Act, for a residence permit on humanitarian grounds pursuant to section 9 b of the Act, or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act.
Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases.
The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs.
A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary.
In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice.
In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicant has not been planned yet. Normally a forced return takes quite some time, not less than two or three months.
Relevant international materials
With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance:
The Secretary General on the United Nations Interim Administration Mission in Kosovo stated in his report of 14 April 2003 covering the activities of UNMIK and the developments in Kosovo, Serbia, and Montenegro among other things that given the continued violence, harassment and discrimination faced by minorities, achieving sustainable minority returns to Kosovo was difficult, time-consuming and resource-intensive;
In his report of 26 June 2003 he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within Kosovo;
In his report of 15 October 2003 he stated inter alia that despite setbacks resulting from recent violent incidents involving Kosovo Serb victims, the overall rate of returns continued to accelerate during the reporting period. Over 2,200 displaced persons had returned so far that year to areas where they were a minority (including 1,016 Kosovo Serb, 693 Roma/ Ashkaelia /Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). Funding expected from several major donors had been provided in Kosovo and work on a number of returns projects had begun in earnest, including the return of Kosovo Serbs to Podgorce (Gnjilane region) and Zhupa Valley (Prizren region), and Roma/ Ashkaelia/Egyptian returns to Magura (Pristinia region) and Pristina town. The heightened level of security within the Kosovo Serb and other minority communities had not resulted in the cancelling of any returns project, but it had led to numerous postponements of returns activities, at a stage in the season where such delays may mean that returns are not possible until next spring. It was also considered likely to have a dampening effect on individuals’ return.
The Tenth Assessment of the Situation of Ethnic Minorities in Kosovo of March 2003, conducted jointly by OSCE and the UNHCR, stated that minorities continue to face varying degrees of harassment, intimidation and provocation, as well as limited freedom of movement, and that considering the overall situation described in the report, the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future, underscoring the continuing need for international protection for members of ethnic communities, in particular Kosovo Serbs, Roma, Ashkaelia and Egyptians;
The UNHCR Position Paper on the continued Protection Needs of individuals from Kosovo of January 2003 stated that especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians should continue to benefit from international protection in countries of asylum. UNHCR stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated, and re-integration should be supported through assistance to ensure sustainability. Kosovo Serb, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo.
The First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, recommended in his mission report of March 2003 “Roma Returns to Serbia and Montenegro” for the Council of Europe, inter alia that Roma asylum seeker/returnees (from Western Europe), who fled Kosovo, should not be returned to Kosovo unless they wish to return and they are advised by UNMIK and UNCHR that it is safe for them personally to return to their homes, and
In its report of 29 April 2003 - Serbia and Montenegro (Kosovo) “Prisoners in our own homes”: Amnesty International’s concerns for the human rights of minorities in Kosovo - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from Kosovo and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “voluntarily return”. Amnesty International considered that the forcible return of members of minority groups to Kosovo would be a violation of the principle of non-refoulement and place minority individuals at risk.
It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003.


ITEMID: 001-69110
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ARRIGO AND VELLA v. MALTA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Noel Arrigo and Mr Patrick Vella, are Maltese nationals and live in Siggiewi and Naxxar (Malta). The first applicant is represented before the Court by Mr G. Abela, a lawyer practising in Valletta, while the second applicant is represented by Mr T. Abela and Mrs T. Cachia, two lawyers practising respectively in Attard and Valletta.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were two judges of the Court of Criminal Appeal. They had been suspected, inter alia, of having accepted a sum of money in order to neglect their duties as public officials.
On 1 August 2002, while the applicants were being interrogated by the police, the Prime Minister of Malta called a press conference at his office and issued a press release in Maltese. The translation into English of this document read as follows:
“I have convened this Press Conference on a matter of importance which I feel that the public should be informed of officially.
The courts of our land have always enjoyed, and still do, the trust of our people.
I regret that I have to inform the public that today two judges are being investigated by the police in connection with serious offences.
On 5 July, judgment was delivered by the Court of Criminal Appeal presided over by Chief Justice Noel Arrigo, Judge Patrick Vella and Judge Joseph Filletti, in the case of “the Republic of Malta vs. Mario Camilleri”.
Before the Court of First Instance, the accused was found guilty, after he had filed a guilty plea, of offences regarding drug trafficking and other related offences, and was condemned to sixteen years imprisonment.
Days before the judgment of the Appeal Court, it became known that contacts were being made on behalf of the accused with Judge Patrick Vella and the Chief Justice so that the prison term to which he had been condemned be reduced by four years, from sixteen to twelve years, and that these two judges were promised amounts of thousands of Liri each.
Judgment was given as allegedly had been agreed.
The Police continued to follow subsequent events. After the judgment it resulted that monies were paid to the said two judges.
The investigations together with interrogations of witnesses began after Judge Patrick Vella returned from abroad on 27 July.
The investigations are continuing today as the two judges were separately asked to go to the Commissioner of Police.
On the Government's side, I want to assure everyone that this case will continue to be investigated to the end and that steps will be taken according to law.
This morning I informed the President of Malta about this all. Afterwards I also informed the Leader of the Opposition. We agreed that the matter is of national importance and that in no way should it be treated as a matter of partisan politics. I thank the Leader of the Opposition for this who like me understands the seriousness of the situation.
Afterwards I called a Cabinet meeting and it was decided to call this Press Conference.
I appeal to the public to wait for the results of the investigations according to law and to consider that what is happening is a confirmation that the institutions of our land apply to everyone. Therefore, the public must still maintain its whole trust in them”.
During the press conference, the Prime Minister was accompanied by his assistant, by the Minister of Interior and by the Minister of Justice. The press conference was shown live on the national television and several articles about it were published in the national newspapers.
On 4 August 2002 the applicants were charged before the Court of Magistrates as a Court of Criminal Inquiry.
Considering that the press conference and the publicity given to it had prejudiced their rights to a fair trial and to the presumption of innocence (Article 6 §§ 1 and 2 of the Convention and Article 39 §§ 1 and 5 of the Constitution of Malta), at the first hearing before the Court of Criminal Inquiry, the applicants requested that the criminal proceedings be stayed and that their complaint be brought before the Civil Court (First Hall) in its constitutional jurisdiction.
In an order of 26 August 2002 the Court of Criminal Inquiry considered that the applicants' claim was not frivolous or vexatious as far as it concerned the press conference and referred the case to the Civil Court. The Court of Criminal Inquiry rejected the applicants' allegations regarding the alleged prejudice suffered because of the publicity given to the statements of the Prime Minister.
Before the Civil Court, the applicants produced several newspaper articles which allegedly treated them as guilty. They also referred to a motion for their removal from duty which was pending before the House of Representatives. They alleged that, as there had been a breach of the presumption of innocence, no fair hearing was possible in their case.
In a judgment of 4 December 2002 the Civil Court held that the declarations made in the press conference could not be considered as statements of guilt and therefore declared that the applicants' fundamental rights had not been breached. The Civil Court directed the Court of Criminal Inquiry to continue the criminal proceedings instituted before it.
The Civil Court first observed that the facts of the case were extraordinary and rather unique for Malta and that it was justified for the Prime Minister to call the press conference in order to inform the public and to avoid an institutional crisis. After having explained the background of the case, the Prime Minister gave assurances that the matter would have to be investigated according to law and requested the public to await the results of these investigations. Answering questions from the media, he reiterated that no conclusion could be drawn at that stage of the proceedings and that the applicants, like any other person, should enjoy the rights set forth in the law. In the Civil Court's opinion, these statements were not clear indications of guilt. The terms employed were those which were generally used on occasions in which reference was made to an ongoing investigation and to the results achieved by the police.
The Civil Court recalled that according to the case-law of the European Court of Human Rights, the presumption of innocence could not prevent the authorities from informing the public about the investigations in criminal matters.
The applicants appealed to the Constitutional Court against the judgment of 4 December 2002.
In a judgment of 29 October 2003 the Constitutional Court revoked the impugned decision and declared that there had been a violation of the applicants' rights to a fair trial and to be presumed innocent. It further ordered that a copy of its judgment be placed in the records of the criminal proceedings pending against the applicants.
The Constitutional Court noted that the Civil Court should have addressed also the applicants' complaint concerning the alleged lack of objective impartiality of the tribunal called upon to decide their case. However, this claim was unfounded, as even assuming that the presumption of innocence had been violated, this would not imply that the criminal proceedings could not be determined by an objectively independent and impartial court. The domestic legal system provided effective safeguards and guarantees in this respect.
The Constitutional Court further observed that the authorities should impart information about pending criminal cases with the necessary caution and circumspection and that it could not be held that this requirement was satisfied simply because some reservations as to the need to await the result of the trial had been made. According to the case-law of the European Court of Human Rights, the presumption of innocence was violated if a statement of a public official concerning a person charged with a criminal offence reflected an opinion that he was guilty before he had been proved so according to law. Even in the absence of a formal finding, it was sufficient that there was some reasoning suggesting that the official regarded the accused as guilty. The choice of words by the public official was of paramount importance but the existence of a breach of Article 6 § 2 of the Convention had to be determined in the context of the particular circumstances in which the impugned statement had been made.
In the present case, the Prime Minister had used the words “it became known” and “it resulted”, which were incompatible with the required caution. It was, in fact, a clear declaration that the facts of which the applicants were accused had actually taken place, thus suggesting that the Prime Minister was considering the applicants guilty. This also resulted from some extracts of the press articles produced by the applicants, which showed that the reservations made at the end of the press conference did not have much effect on public opinion, which was de facto encouraged to believe that the accused had committed a criminal offence.
As the presumption of innocence was one of the elements of a fair criminal trial, the violation of paragraph 2 of Article 6 of the Convention also and necessarily entailed a breach of the first paragraph of this provision and of Article 39 § 1 of the Constitution of Malta.
In the light of its finding that there was no lack of objective impartiality on the part of the national tribunals, the Constitutional Court considered that there was no room for ordering the suspension of the criminal proceedings against the applicants. However, it held that in order to provide a remedy for the violations found, and also with the ultimate aim of providing scrupulously and applying all safeguards contemplated and contained in the Criminal Code, its judgment should be brought to the attention of the court which would eventually be called upon to determine the criminal proceedings initiated against the applicants.
On 17 March 2004 the applicants requested the Court of Criminal Inquiry to suspend the trial pending a decision from the European Court of Human Rights.
In an order of 7 September 2004 the Court of Criminal Inquiry rejected the applicants' claim and decided to continue with the collection of evidence. It observed that considerations of public order militated against the requests of the defence and that in its judgment of 29 October 2003 the Constitutional Court had explicitly excluded the need to stop the criminal proceedings against the applicants.


ITEMID: 001-57941
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF KEROJÄRVI v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Paul Mahoney;R. Pekkanen
TEXT: 6. Mr Erkki Kerojärvi, a Finnish citizen born in 1924, is retired and lives in Helsinki.
7. On 5 September 1985 the State Office for Accident Compensation (tapaturmavirasto, olycksfallsverket - "the Compensation Office") gave its decision on a request by the applicant for compensation under the 1948 Military Injuries Act (sotilasvammalaki, lag om skada, ådragen i militärtjänst, 28.5.1948/404 - "the 1948 Act") from the Finnish State in respect of certain conditions which he claimed resulted from his service in the wars between 1939 and 1945 between Finland and the Soviet Union. The Compensation Office accepted that a shrapnel wound to the applicant’s back was a military injury but rejected his claims in respect of inguinal hernia, chronic prostatitis, acute tonsillitis and a number of other conditions. Considering that the degree of his disability was less than ten per cent, the minimum required to qualify for a life annuity (elinkorko, livränta) under section 8 of the 1948 Act (see paragraph 19 below), the Compensation Office refused to grant him such a benefit.
On appeal, the Insurance Court (vakuutusoikeus, försäkringsdomstolen) recognised that the applicant in addition suffered from tonsillitis entitling him in principle to compensation but found that the degree of his disability nevertheless remained less than ten per cent. On 4 September 1986 it therefore dismissed the applicant’s request for compensation. This decision was upheld by the Supreme Court on 15 December 1987.
8. In January 1988 the applicant asked the Compensation Office to adjust the degree of his disability. He cited a medical report of 3 June 1987 to establish that he suffered from the above-mentioned conditions. In May 1988 he submitted a further report.
The Compensation Office rejected the request on 23 August 1988 on the ground that the applicant had failed to show a fundamental change in the circumstances on the basis of which his disability had initially been assessed.
9. The applicant appealed from that decision to the Insurance Court. He adduced additional evidence, including the results of an X-ray examination and laboratory tests of 17 April 1989, and renewed his previous request for compensation in so far as it had been refused in the proceedings referred to in paragraph 7 above.
10. In the course of the proceedings the Insurance Court obtained an opinion from the Compensation Office, dated 24 October 1988, which, without giving reasons, recommended the rejection of the appeal. It also received copies of a master file concerning the applicant, and a medical file containing a record of his war-time medical examinations, from the Headquarters of the Military District of Western Uusimaa (Länsi-Uudenmaan sotilaspiirin esikunta, staben för Västra Nylands militärdistrikt). These documents showed, inter alia, that in 1940 the applicant had been treated in a military hospital for inguinal hernia and that in 1943 he had undergone an operation for this condition.
The Insurance Court did not communicate copies of the opinion or files to the applicant. They were, however, included in the Insurance Court’s case file, which was available to the applicant throughout the proceedings in that court (section 19 of the 1951 Act on the Access to Public Documents - laki yleisten asiakirjain julkisuudesta, lagen om allmänna handlingars offentlighet, 9.2.1951/83).
11. In a decision of 19 October 1989 the Insurance Court rejected the applicant’s appeal on the assessment of the degree of his disability, finding that his shrapnel injuries and acute tonsillitis still represented a disability of less than ten per cent. It also rejected his claim for compensation on the ground that it had been decided with legal force (see paragraph 21 below) by the Supreme Court’s judgment of 15 December 1987 (see paragraph 7 above). The decision stated that the Insurance Court had obtained the above-mentioned opinion from the Compensation Office and files from the Headquarters of the Military District. It further indicated that the Insurance Court would return the master file and the file pertaining to the applicant’s war-time medical examinations to the Headquarters and that an appeal could be lodged with the Supreme Court "if the matter [concerned] entitlement to compensation".
12. On 31 December 1989 the applicant appealed to the Supreme Court, challenging the Insurance Court’s ruling that a final decision on his compensation claim had been given by the Supreme Court on 15 December 1987. He requested rehabilitation treatment on an annual basis and the reimbursement of certain subsistence expenses. He claimed that his war injuries were permanent. His appeal did not mention that the documents obtained by the Insurance Court had not been communicated to him.
13. The Insurance Court transmitted the case file to the Supreme Court; it included the Compensation Office’s opinion but not the master and medical files, which had been returned to the Headquarters of the Military District (see paragraph 11 above). According to the Government, copies of the master file had been included in the case file relating to the first set of proceedings in the Supreme Court. The Government further stated that, in the second set of proceedings, the Insurance Court and the Supreme Court had based their decisions at least in part on the master and medical files.
14. The Agent of the Government stated at the public hearing on 22 February 1995 that at the material time it was consistent practice of the Insurance Court and the Supreme Court not to communicate documents of the kind in question even if they had been obtained at the court’s own request and irrespective of whether the issue at stake was one of admissibility or merits.
15. On 7 June 1990 the Supreme Court upheld the Insurance Court’s decision of 19 October 1989. The Supreme Court’s decision stated:
"The appeal to the Supreme Court Kerojärvi has requested compensation for [certain alleged illnesses]. The finding of the Supreme Court The decision of the Insurance Court is not varied.
..."
16. The applicant was not legally represented either in the Insurance Court or in the Supreme Court. At no stage of the proceedings did he consult the case file.
17. A compensation scheme, entirely funded by the Finnish State, for injury and illness suffered as a result of military service was set up under the 1948 Act. Pursuant to section 1 of the 1956 Act on Extended Application of the Military Injuries Act (laki sotilasvammalain soveltamisalan laajentamisesta, lag angående utvidgad tillämpning av lagen om skada, ådragen i militärtjänst, 15.6.1956/390) the 1948 Act applies to, among others, Finnish soldiers wounded in the wars between Finland and the Soviet Union from 1939 to 1945.
18. The general rule in section 1 (1) of the 1948 Act provides that compensation under the Act "shall be granted" to persons for injury or illness suffered by them as a result of service, inter alia, as conscripts. Detailed rules on the kind of injury and illness which may be regarded as caused by military service for the purpose of compensation under the Act are contained in sections 2 and 3.
19. Section 8 (1) in "Chapter 2. On Compensation" (Korvaukset, Ersättingar) reads:
"A wounded or ill person whose degree of disability is at least ten per cent shall be entitled to a life annuity. The figure representing the degree of disability corresponds to the extent to which the injury or illness suffered reduces the ability of the person concerned to support himself or herself."
20. Section 29 (2), as applicable at the material time, provided that an appeal against a decision by the Insurance Court on entitlement to compensation under the 1948 Act lay to the Supreme Court. A decision by the Insurance Court was however to be final in certain matters.
The Supreme Court has interpreted the above provision to mean that the person concerned can appeal on entitlement to compensation but not on the degree of disability, so that an appeal on the latter is inadmissible.
21. According to a general principle of law in Finland, a decision by the Supreme Court rejecting, in full or in part, a claim by an individual to be granted a benefit from a public authority has legal force (lainvoima, laga kraft), in the sense that it may not be the subject of a further appeal. However, it is not res judicata (oikeusvoima, rättskraft). The claimant may at any time, by means of a fresh application, request the competent authority to reconsider the claim (see, inter alia, Jaakko Uotila, Seppo Laakso, Teuvo Pohjolainen, Jarmo Vuorinen, pp. 186-89 in Yleishallinto-oikeus pääpiirteittäin, Tampere 1989). This principle also applies to a request for compensation under the 1948 Act.
22. Pursuant to the new version of section 29 (2), as amended with effect from 1 January 1994 (by Act no. 1225/93), decisions taken by the Insurance Court under the Act are final. However, subject to certain strict conditions, section 25 (also amended) provides for reopening of proceedings in the Compensation Office or in the Insurance Court.
23. Where appropriate, the provisions governing the proceedings in the ordinary courts may be applied to those in the Insurance Court (section 9 (4) of the 1958 Insurance Court Act - laki vakuutusoikeudesta, lag om försäkringsdomstolen, 17.1.1958/14).
Under Article 6 of chapter 26 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), if the Court of Appeal (hovioikeus, hovrätten) has obtained of its own motion an opinion or other written statement which may have an impact on its determination of the case, the Court of Appeal must, unless it is clearly unnecessary, request the parties concerned to comment thereon in writing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1