Last Updated on April 21, 2020 by LawEuro
Information Note on the Court’s case-law 238
March 2020
Dyagilev v. Russia – 49972/16
Judgment 10.3.2020 [Section III]
Article 9
Article 9-1
Freedom of conscience
Dismissal of request for replacement of compulsory military service with its civilian alternative for lack of substantiation of the seriousness of the applicant’s conscientious objection: no violation
Facts – The general right of conscientious objectors to have their obligatory military service replaced with its civilian alternative is expressly enshrined in the Constitution of the Russian Federation. Yet this replacement is not unconditional: applications are subject to the approval of a recruitment commission, in accordance with the provisions of the Civilian Service Act.
In 2014 the applicant graduated from university, which left him liable to be called up for military service. Soon afterwards – after attending a legal seminar organised by the “Committee of Soldiers’ Mothers” which, he submitted, finally allowed him to understand his adherence to pacifism – he applied to be assigned to civilian service instead.
The military recruitment commission dismissed this request on the ground that the documents (a CV and a letter of recommendation from his place of work) and information provided were not sufficiently persuasive to conclude that he was a genuine pacifist. His appeals were dismissed for the same reason, as the applicant had not adduced any further evidence to substantiate his allegations.
Law
Article 9:
a) Positive obligations (to establish an appropriate framework for conscientious objection)
An effective and accessible procedure for determining whether an applicant was entitled to conscientious objector status must first be established. It transpired from the following reasons that the respondent State complied with this requirement.
(i) Proceedings before a military commission – The examination of an application for the replacement of compulsory military service with its civilian alternative is undertaken in the presence of the claimant, who is able to present evidence and witness testimony without any restrictions. A commission is also able to collect on its own motion any information that it deems necessary.
Admittedly, Russian military recruitment commissions are comprised of government officials (either military or civil): they do not comprise any civil society experts acting in a personal capacity or members of the public. While the Compulsory Military Service Act provides for the possibility to have representatives of other agencies and organisations in the composition of recruitment commissions, the parties had not provided examples of such cases.
Furthermore, under the Civilian Service Act, a commission can deliver decisions if no less than two thirds of its seven members are present. That could result in situations where the majority of its members are military officials. Therefore, in practice, the composition of a recruitment commission may vary not only from one region to another but also between sessions. Admittedly, such variability may be unfortunate.
However, the question was whether the independence requirement had been fulfilled in the specific circumstances of the present case. This was deemed to be the case, as none of the following arguments to the contrary convinced the Court.
Firstly, the provision of ordinary administrative support (such as proving premises for sessions) could not in itself be seen as affecting the independence of a commission’s members: nothing suggested that individual members obtained any payments or incentives from the military authorities; they remained employed by their own State agencies and were not subject to any pressure or received any instructions from the Ministry of Defence;
Secondly, failing any credible evidence, the applicant’s allegation that members of recruitment commissions did not have true voting powers and that all decisions were de facto made by the heads of the military commissariats was speculative.
(ii) Proceedings before the domestic courts – Firstly, all decisions adopted by a military recruitment commission were amenable to an appeal before the courts of general jurisdiction, who were vested with broad powers of review: judicial scrutiny covered all matters of fact and law as well as observance of the rights and freedoms of a claimant; courts were empowered to declare a contested decision unlawful, as well as to order measures to remedy breaches of the law and individual rights and freedoms.
Secondly, commissions’ decisions were automatically suspended pending the adoption of a final judgment by a domestic court. While it was true that a subsequent two-tier review in cassation proceedings before the regional courts and the Supreme Court had no suspensive effect, this would not automatically render cassation proceedings ineffective (the applicant himself never alleged any ineffectiveness stemming therefrom).
(iii) Statistical information – Both parties and the intervener NGO had relied on statistical data. However, there was a significant discrepancy between the respective information submitted about the approval rate of applications for the replacement of military service with its civilian alternative (from 50% according to the NGO to 98% according to the Government).
The Court was not in a position to determine whether the reasons for such a significant discrepancy were due to the differences in statistical technology or to calculation errors. Nonetheless, all three approaches confirmed the absence of institutional bias against individuals seeking such replacement.
(iv) Conclusion – The existing mechanism in Russia for the examination of applications for the replacement of compulsory military service with its alternative civilian version provided wide scope for examination of individual circumstances and encompassed sufficient procedural guarantees for a fair procedure. While in practice, in certain circumstances, the composition of a commission might raise doubts as to its independence, the general rule, as could be seen from the regulatory framework and the examples provided by the parties, was that a recruitment commission, given the structural detachment of the majority of its members from the military authorities, satisfied the prima facie requirement of independence (see, a contrario, Papavasilakis v. Greece, 66899/14, 15 September 2016, Information Note 199). Furthermore, any procedural defects occurring at the commission level could be subsequently remedied during the judicial proceedings, given the scope of the judicial review process and the courts’ wide powers.
b) Negative obligations
Save for the instances of arbitrariness or manifest unreasonableness, the Court relied on the conclusions reached by an effective domestic mechanism after examination of an individual request. The military recruitment commission had sat in its standard composition, which (as seen above) afforded the requisite guarantees of independence. The applicant had not complained about scarcity of reasons for its decision. The domestic courts had not limited the scope of the review to the decision of the commission: the applicant’s replacement application had been examined anew. While offered an opportunity thereto, he had not brought any new evidence or witnesses. No violation of fair-trial guarantees had been alleged; nor was there any indication that the courts had held any presumptions of facts or of law against the applicant.
Given that it is not its task to substitute its own assessment of factual evidence to that carried out by the domestic courts, the Court saw no reason to doubt the latter’s conclusion: the applicant had failed to substantiate the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions.
Conclusion: no violation (four votes to three).
(See also the factsheet: Conscientious objection)
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