Giuseppina Scala
Introduction
The European Court of Human Rights (hereafter: the Court) decided that Armenia violated the freedom of religion (article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, hereafter: the Convention) of Avanesyan Artur, an Armenian national living in Masis (Armenia) holding an Armenian passport since 2012.
The facts
The applicant, Mr. Avanesyan Artur was born in 1995 in the unrecognized entity of Nagorno Karabakh Republic situated in the South Caucasus (hereafter: NKR) and since 2012 he is an Armenian national bearing an Armenian passport. In 2014 NKR called him for the compulsory two years military service (under the unrecognized NKR Constitution adopted by referendum in 2006) for which he refused to perform on religious ground. In fact, Artur Avanesyan is a Jehovah’s Witness and he asked to perform civilian service. Meanwhile he moved to Armenia where he was arrested under the Criminal Code of NKR (article 347 § 1) for evading regular conscription to fixed-term military service and subsequently transported to NKR and imprisoned. Avanesyan Artur complained that his conviction violated his right to manifest his religion when refusing to perform military service under article 9 of the Convention.
The judgement
The Court ruled on two main issues regarding the admissibility of the case and the merit: a) was Armenia responsible for Avanesyan’s case and thus is it obliged to secure the Convention over the unrecognized entity of NKR? I.e.: is the applicant falling within Armenian’s jurisdiction ex article 1 of the Convention? b) Has there been a violation of freedom of religion of the applicant who had been convicted?
As to sub a), despite the fact that the Armenian Government underlined that it had no jurisdiction in NKR, the Court decided that Armenia, having effective control over NKR and the surrounding territories, was obliged to secure the Convention rights and freedoms over that entity. For this reason, the Court declared the case admissible. As to sub b) the Court ruled that the applicant’s conviction constituted an interference with his freedom of religion which was not compatible in a democratic society.
Conclusions
Avanesyan v. Armenia represents another case thanks to which the Strasbourg Court reiterated two concepts. Firstly, the meaning of a “Contracting State” and, secondly, the importance of reconciling the conflict between individual conscience and military obligation. In fact, it is worth noting that, following the reasoning of the Court, a country is considered a contracting state not only when it has jurisdiction on its territory but also when it exercises jurisdiction outside its own territory when it has effective control through its own armed forces or through local administration. Moreover, although according to the case law of the Court a State Party can gain a certain margin of appreciation in deciding whether and to what extent an interference is necessary (see Leyla Şahin v. Turkey), in this case it is undisputed that Avanesyan genuinely sought to be exempted from military service on the ground of his religious convictions.