\nCASE OF AVANESYAN v. ARMENIA<\/strong>
\n(Application no. 12999\/15)<\/em>
\nJUDGMENT<\/p>\n
Art 9 \u2022 Manifest religion or belief \u2022 Disproportionate conviction of conscientious objector for draft evasion without due consideration to his religious beliefs<\/p>\n
STRASBOURG
\n20 July 2021<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Avanesyan v. Armenia,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Yonko Grozev, President, Having regard to:<\/p>\n the application (no.\u00a012999\/15) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Armenian national, Mr Artur Avanesyan (\u201cthe applicant\u201d), on 12 March 2015;<\/p>\n the decision to give notice to the Armenian Government (\u201cthe Government\u201d) of the complaint concerning an alleged violation of the applicant\u2019s right to freedom of religion and to declare the remainder of the application inadmissible;<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 15 June 2021,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The case concerns the applicant\u2019s refusal to perform military service for reasons of conscience and his conviction for draft evasion, and raises issues under Article 9 of the Convention.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1995 and lives in Masis, Armenia. He was represented by Mr S.H. Brady Heath and Ms Y. Margaryan, lawyers practising in Strasbourg and Yerevan.<\/p>\n 3. The Government were represented by their Agent, Mr\u00a0Y.\u00a0Kirakosyan, Representative of the Republic of Armenia to the European Court of Human Rights.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. The applicant is a Jehovah\u2019s Witness. He was born, and at the material time lived, in the town of Askeran, situated in the unrecognised \u201cNagorno Karabakh Republic\u201d (hereafter \u201cthe NKR\u201d). He is an Armenian national and has held an Armenian passport since 2012.<\/p>\n 6. On 29 January 2014 the applicant received a summons to report to the Askeran military commissariat with a view to performing his military service.<\/p>\n 7. On 30 January 2014 the applicant addressed a letter to the Askeran military commissariat, stating that, as a Jehovah\u2019s Witness, his conscience did not allow him to serve in the army. Since alternative civilian service was available in Armenia, he was willing to perform that service instead of compulsory military service.<\/p>\n 8. On the same date the applicant moved to the town of Masis in Armenia as, according to his submissions, he was convinced that his application would be rejected and he feared criminal prosecution.<\/p>\n 9. On 5 February 2014 he applied to the relevant authority to have his residence registered in Masis.<\/p>\n 10. On 12 February 2014 he registered with the Masis military commissariat, which on the same date asked the Askeran military commissariat to transfer his personal file.<\/p>\n 11. On 13 February 2014 the applicant applied to the Masis military commissariat requesting permission to perform alternative civilian service instead of military service.<\/p>\n 12. On 17 February 2014 the Askeran regional prosecutor\u2019s office of the \u201cNKR\u201d instituted criminal proceedings against the applicant under Article\u00a0347 \u00a7 1 of the \u201cNKR\u201d Criminal Code (evasion of regular conscription for military service \u2013 see paragraph 25 below).<\/p>\n 13. On 3 March 2014 an investigator from the Criminal Investigations Unit of the \u201cNKR\u201d police ordered that the applicant be brought in for questioning. That decision stated that a summons had been sent to the applicant\u2019s address in Masis ordering him to appear for questioning on 1\u00a0March 2014 but that the applicant had failed to appear.<\/p>\n 14. On 14 March 2014 the investigator brought formal charges against the applicant under Article 347 \u00a7 1 of the \u201cNKR\u201d Criminal Code and declared the applicant a wanted person, since his whereabouts were unknown and it was impossible to bring him in for questioning because he was outside the territory of the \u201cNKR\u201d.<\/p>\n 15. On the same date the First-Instance Court of General Jurisdiction of the \u201cNKR\u201d ordered the applicant\u2019s pre-trial detention on the same grounds.<\/p>\n 16. The applicant alleged that his application to perform alternative civilian service, lodged in Armenia (see paragraph 11 above), had been due to be examined by the relevant Armenian authority on 25 July 2014.<\/p>\n 17. On 14 July 2014 the applicant appeared at Kentron police station in Yerevan following a summons. He was immediately arrested and handed over to the officers of the \u201cNKR\u201d police, who transported him to the \u201cNKR\u201d on the same date and placed him in a remand prison.<\/p>\n 18. On an unspecified date the trial in the applicant\u2019s criminal case commenced in the First-Instance Court of General Jurisdiction of the \u201cNKR\u201d. The applicant submitted before the court that his criminal prosecution violated his rights guaranteed by Article 9 of the Convention. He also argued that, as an Armenian national, he was entitled to perform alternative civilian service under the Alternative Service Act.<\/p>\n 19. On 30 September 2014 the First-Instance Court of General Jurisdiction of the \u201cNKR\u201d found the applicant guilty as charged and sentenced him to two years and six months\u2019 imprisonment.<\/p>\n 20. On 22 October 2014 the applicant lodged an appeal, raising similar arguments to those he had raised before the trial court (see paragraph 18 above).<\/p>\n 21. On 26 November 2014 the Appeal Court of the \u201cNKR\u201d dismissed the applicant\u2019s appeal and upheld the judgment of the first-instance court. The Appeal Court dismissed the applicant\u2019s arguments under Article 9 of the Convention. It found that the Alternative Service Act, relied on by the applicant, was not applicable in the \u201cNKR\u201d; hence, the fact that he was a Jehovah\u2019s Witness did not constitute grounds for him to be exempted from serving in the \u201cNKR\u201d army.<\/p>\n 22. On 12 December 2014 the applicant lodged an appeal on points of law.<\/p>\n 23. On 25 December 2014 the Supreme Court of the \u201cNKR\u201d declared the applicant\u2019s appeal on points of law inadmissible for lack of merit.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/p>\n I. Relevant armenian law<\/strong><\/p>\n 24. On 1 July 2004 alternative service was introduced in Armenia with the entry into force of the Alternative Service Act. Under section 3 of the Act, Armenian citizens whose creed or religious beliefs do not allow them to carry out military service may perform alternative service, which includes alternative civilian service.<\/p>\n II. relevant \u201cNKR\u201d law<\/strong><\/p>\n 25. Article 347 \u00a7 1 of the \u201cNKR\u201d Criminal Code (2013) prescribes a penalty of imprisonment for the evasion of regular conscription for fixed\u2011term military service.<\/p>\n THE LAW<\/p>\n I. PRELIMINARY REMARKS<\/p>\n 26. The Government submitted a unilateral declaration requesting the Court to strike the application out of its list of cases pursuant to Article 37 \u00a7\u00a01 of the Convention.<\/p>\n 27. The applicant objected to the Government\u2019s unilateral declaration.<\/p>\n 28. In the light of the criteria established in its case-law, the Court considers that the unilateral declaration submitted by the Government does not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 \u00a7 1 in fine). Hence, the Court rejects the Government\u2019s request to strike the application out and will accordingly continue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307\/95, \u00a7 75, ECHR 2003\u2011VI).<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION<\/p>\n 29. The applicant complained that his arrest and subsequent detention, prosecution and conviction for conscientious objection had violated the guarantees of Article 9 of the Convention, which reads as follows:<\/p>\n \u201c1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.<\/p>\n 2. Freedom to manifest one\u2019s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 1. Jurisdiction<\/em><\/p>\n 30. The Court must first determine whether, for the purposes of the matters complained of, the applicant falls within the jurisdiction of the respondent State, within the meaning of Article 1 of the Convention.<\/p>\n (a) The parties\u2019 submissions<\/p>\n 31. The Government submitted that Armenia had no jurisdiction in respect of the events which had taken place in the territory of the \u201cNKR\u201d, including the applicant\u2019s detention and conviction. They argued that the conclusions reached by the Court with regard to extraterritorial jurisdiction in its earlier cases concerning Armenia (they referred to Chiragov and\u00a0Others v. Armenia [GC], no. 13216\/05, \u00a7\u00a7 169-86, ECHR 2015, and Muradyan v. Armenia, no. 11275\/07, \u00a7\u00a7 123-27, 24 November 2016) could not and should not be automatically applicable to all future scenarios. Relying on a number of cases decided by the International Court of Justice, the Government argued that the only responsibility which could be attributable to Armenia, in view of the military, political, financial and other support provided by it to the \u201cNKR\u201d, was the obligation to exert influence over the local administration to prevent violations of international law. Armenia could not, however, be held responsible for the actions of the local unrecognised administration, since the \u201cNKR\u201d authorities were not agents of Armenia and this would contradict the principles of international law on State responsibility. Thus, Armenia\u2019s responsibility could be engaged only in so far as the inaction of its own agents was concerned, and could not arise in respect of the actions of the agents of the local administration. Moreover, the obligation described above could be engaged only in respect of violations that were of an ongoing and continuous nature, giving the Armenian authorities sufficient time to intervene and to exert influence over the local administration, as opposed to one-off actions. This was not the situation in the applicant\u2019s case and therefore his detention and conviction in the \u201cNKR\u201d did not fall under Armenia\u2019s jurisdiction.<\/p>\n 32. The applicant submitted that the Government\u2019s submissions regarding Armenia\u2019s lack of responsibility under the Convention for the actions of the \u201cNKR\u201d authorities were in contradiction with the Court\u2019s case-law in the matter (he referred to Chiragov and Others, cited above, \u00a7\u00a7\u00a0169-86; Zalyan and Others v. Armenia, nos. 36894\/04 and 3521\/07, \u00a7\u00a7\u00a0214-15, 17 March 2016; and Muradyan, cited above, \u00a7 126). With reference to the case of Mozer v. the Republic of Moldova and Russia ([GC], no. 11138\/10, \u00a7\u00a7 156-58 and \u00a7\u00a7 217-18, 23 February 2016) and Chiragov and Others (cited above), the applicant argued that, since Armenia exercised effective control over the \u201cNKR\u201d, it was responsible under the Convention for the violation of his Article 9 rights by the local administration, including by the \u201cNKR\u201d courts and the \u201cNKR\u201d authorities. If it were otherwise, it would mean that the Convention was not applicable in the \u201cNKR\u201d and that the Court accepted the \u201cNKR\u201d as an independent State. The applicant contested the Government\u2019s assertion that he had been extradited to the \u201cNKR\u201d, and submitted that he had simply been handed over by the Armenian police to the \u201cNKR\u201d police as if he were being transferred from one region of Armenia to another; this in itself demonstrated that the \u201cNKR\u201d was under the effective control of Armenia. In sum, Armenia had jurisdiction over the matters complained of and was responsible for the violation of the applicant\u2019s Convention rights.<\/p>\n (b) The Court\u2019s assessment<\/p>\n 33. At the outset, the Court recalls, in response to the Government\u2019s argument based on the principles on State responsibility under public international law, that it has consistently made clear that the test for establishing the existence of \u201cjurisdiction\u201d under Article 1 of the Convention has never been equated with the test for establishing a State\u2019s responsibility for an internationally wrongful act under international law (see Jaloud v. the Netherlands [GC], no. 47708\/08, \u00a7 154, ECHR 2014, and Ukraine v. Russia (Re Crimea) (dec.) [GC], nos. 20958\/14 and one other, \u00a7\u00a0311, 16 December 2020).<\/p>\n 34. In relation to the concept of \u201cjurisdiction\u201d under Article 1 of the Convention, the Court reiterates that under its established case-law such \u201cjurisdiction\u201d is a condition sine qua non in order for that State to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Al-Skeini and Others v. the United Kingdom [GC], no.\u00a055721\/07, \u00a7 130, ECHR 2011, and M.N. v Belgium (dec.) [GC], no.\u00a03599\/18, \u00a7 97, 5 May 2020). As to the meaning to be given to the concept of \u201cjurisdiction\u201d for the purposes of Article 1 of the Convention, the Court has emphasised that a State\u2019s jurisdictional competence is primarily territorial (ibid., \u00a7 98; see also Bankovi\u0107 and Others v. Belgium and Others (dec.) [GC], no. 52207\/99, \u00a7\u00a7 59-61, ECHR 2001\u2011XII).<\/p>\n 35. However, the Court has also recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts. One such exception to the principle that jurisdiction under Article 1 is limited to a State Party\u2019s own territory arises where that State exerts effective control over an area outside its national territory. The obligation to secure the rights and freedoms set out in the Convention in such an area derives from the fact of such control, whether it be exercised directly, through the Contracting State\u2019s own armed forces, or through a subordinate local administration (for a summary of the case-law on these situations, see Al\u2011Skeini and Others, cited above, \u00a7\u00a7 138\u201140 and 142; for more recent applications of this case-law, see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370\/04 and 2 others, \u00a7\u00a7 121 22, ECHR\u00a02012 (extracts); Chiragov and Others, cited above, \u00a7 186; Mozer, cited above, \u00a7\u00a7 110\u201111; Sandu and Others v. the Republic of Moldova and\u00a0Russia, nos. 21034\/05 and 7 others, \u00a7\u00a7 36\u201138, 17 July 2018; and M.N.\u00a0v\u00a0Belgium, cited above, \u00a7 103).<\/p>\n 36. The Court notes that it has already examined this issue and reached similar conclusions in respect of Armenia and the \u201cNKR\u201d. It found that, at the relevant time, Armenia exercised effective control over the \u201cNKR\u201d and the surrounding territories and that, by doing so, Armenia was under an obligation to secure in that area the rights and freedoms set out in the Convention. Its responsibility under the Convention could not be confined to the acts of its own soldiers or officials operating in the \u201cNKR\u201d but was also engaged by virtue of the acts of the local administration which survived by virtue of Armenian military and other support (see Chiragov and Others, cited above, \u00a7\u00a7 169-86; Muradyan, cited above, \u00a7 126; and Zalyan and\u00a0Others, cited above, \u00a7\u00a7 214-15).<\/p>\n 37. The Court finds no particular circumstances in the instant case, all of which took place prior to the recent hostilities between Armenia and Azerbaijan which ended on 10 November 2020, that would require it to depart from its findings in the above-mentioned judgments and therefore concludes that, at that time, Armenia had jurisdiction over the matters complained of within the meaning of Article 1 of the Convention, including the applicant\u2019s prosecution and conviction in the \u201cNKR\u201d.<\/p>\n 38. It follows that the Armenian Government\u2019s objection of incompatibility ratione loci must be dismissed.<\/p>\n 2. Compliance with the six-month time-limit<\/em><\/p>\n 39. The Government also raised an objection as regards compliance with the six-month time-limit. They argued that, since Armenia\u2019s responsibility under the Convention was engaged only in respect of the acts of its own agents, the applicant had failed to comply with the six-month time-limit as far as those acts were concerned. In particular, the events involving the Armenian authorities, namely the Armenian police, had ended on 14 July 2014 when the applicant had been extradited to the \u201cNKR\u201d (see paragraph\u00a017 above). Since the applicant had had no effective remedies to exhaust in respect of those actions, the six-month time-limit within the meaning of Article 35 \u00a7 1 of the Convention was to be calculated from that date. However, the application had been lodged only on 12 March 2015.<\/p>\n 40. The applicant submitted that it was irrelevant whether or not he had had any remedies to exhaust in respect of his arrest in Armenia, since Armenia exercised effective control over the \u201cNKR\u201d and his arrest, prosecution and conviction constituted one continuous violation for which Armenia was responsible. He had challenged his arrest and conviction before all levels of jurisdiction in the \u201cNKR\u201d courts and had lodged his application with the Court approximately two months after the decision of the \u201cNKR\u201d Supreme Court of 25 December 2014 dismissing his final appeal (see paragraph 23 above). The Government\u2019s objection was therefore groundless.<\/p>\n 41. The Court reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064\/90 and 8 others, \u00a7 157, ECHR 2009).<\/p>\n 42. Turning to the circumstances of the present case, the Court notes that the Government\u2019s objection regarding compliance with the six-month rule is based on their argument that Armenia\u2019s jurisdiction was limited to the actions of the Armenian police, including the applicant\u2019s arrest in Armenia and his transfer to the \u201cNKR\u201d police. The Court has already rejected this argument and found that Armenia was responsible not only for the acts of its own agents but also for those of the agents of the \u201cNKR\u201d, including the applicant\u2019s prosecution and conviction in that entity. Thus, Armenia\u2019s jurisdiction extends to the entire criminal proceedings against the applicant, starting with his arrest in Armenia (see paragraph\u00a017 above) and ending with his conviction by the \u201cNKR\u201d courts. The final decision within the meaning of Article 35 \u00a7 1 of the Convention was therefore the decision of 25 December 2014 of the Supreme Court of the \u201cNKR\u201d (see paragraph\u00a023 above). In view of the fact that the applicant lodged his application within six months from the date of that decision, the Court rejects the Government\u2019s objection.<\/p>\n 3. Conclusion<\/em><\/p>\n 43. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n (a) The applicant<\/p>\n 44. The applicant submitted that his arrest in Armenia and his subsequent detention, prosecution and conviction in the \u201cNKR\u201d amounted to an interference with his Article 9 rights.<\/p>\n 45. According to the applicant, the interference had not been prescribed by law. Firstly, with regard to the applicant\u2019s transfer by the Armenian police to the \u201cNKR\u201d police, the Government had failed to cite any law that required the Armenian police to take the actions in question. His transfer could not be characterised as an \u201cextradition\u201d, as claimed by the Government, but even if it were viewed as a de facto extradition, it would have been effected in violation of Armenia\u2019s Constitution and Code of Criminal Procedure since Armenia did not allow extradition of its citizens. Secondly, his conviction by the \u201cNKR\u201d courts had also been unlawful, since he had not committed any offence under Armenian law. Armenia recognised the right to conscientious objection under the Alternative Service Act. Contrary to the Government\u2019s claim, he was an Armenian citizen, as evidenced by his passport (see paragraph\u00a05 above), and, as an Armenian citizen, he had exercised that right by applying to the relevant Armenian authority with a request to perform alternative civilian service, and could not be prosecuted while his application was still pending. Moreover, the \u201cNKR\u201d courts could not be considered a lawful authority with the capacity to prosecute and convict the applicant (he referred to Mozer, cited above, \u00a7\u00a7\u00a0143-48).<\/p>\n 46. Furthermore, the interference had not pursued a legitimate aim since his arrest, prosecution and conviction had been in total disregard of Armenian law and the Convention, including the Court\u2019s judgment in the case of Bayatyan v. Armenia ([GC], no. 23459\/03, ECHR 2011).<\/p>\n 47. Lastly, the interference had not been necessary in a democratic society. In particular, alternative civilian service had been available in Armenia and the applicant had applied to perform that service. Rather than permitting him to do so, the Armenian police had acted to prevent him from performing alternative service and to punish him for his conscientious objection. They had arrested and handed him over to the \u201cNKR\u201d authorities, just eleven days before his application for alternative service was due to be determined (see paragraphs\u00a016 and 17 above), being well aware that there he would be detained, prosecuted and convicted for his conscientious objection.<\/p>\n 48. In sum, in the applicant\u2019s submission, his arrest in Yerevan and his subsequent detention, prosecution and conviction in the \u201cNKR\u201d had violated his Article 9 rights.<\/p>\n (b) The Government<\/p>\n 49. The Government submitted at the outset that since the introduction of the Alternative Service Act in 2004 conscientious objectors in Armenia had enjoyed the right to conscientious objection and to perform alternative civilian service. The \u201cNKR\u201d, on the other hand, not being a member of the Council of Europe and not being bound by the Court\u2019s case-law, was a separate entity and could not be influenced by the legislative changes in Armenia. It had developed its own independent strategy in the matter, choosing not to introduce alternative service in view of its unique political and military situation.<\/p>\n 50. The Government further submitted that the only interference by the Armenian authorities with the applicant\u2019s Article 9 rights had been his extradition to the \u201cNKR\u201d, where he had risked a potential violation of that provision through his prosecution and conviction for conscientious objection. The Government wished therefore to refrain from making any submissions regarding the events which had taken place in the \u201cNKR\u201d. As to the applicant\u2019s extradition by the Armenian authorities, the Government argued that, while the applicant had submitted a request to perform alternative civilian service in Armenia (see paragraph 11 above), there had been no guarantee that his application would be successful since he was a citizen of the \u201cNKR\u201d and had not been registered with any military commissariat. Thus, his extradition had pursued a legitimate aim since criminal proceedings had been officially instituted against him in the \u201cNKR\u201d. However, the Government were prepared to acknowledge that the applicant\u2019s extradition might have been unlawful or unnecessary in a democratic society. In particular, the Armenian authorities, being aware of the legislation in the \u201cNKR\u201d and the fact that the applicant\u2019s extradition would most likely result in his conviction, had not followed the formal extradition procedures or duly considered the legitimacy of the extradition by taking into account the fact that it might raise issues with respect to the applicant\u2019s right to freedom of religion.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n (a) Whether there was an interference<\/p>\n 51. The applicant asserted that his refusal to perform military service had been a manifestation of his religious beliefs, which the Government did not dispute and which the Court has no reasons to doubt. His conviction for draft evasion (see paragraph 19 above) therefore amounted to an interference with his freedom to manifest his religion as guaranteed by Article 9 \u00a7 1 (see Bayatyan, cited above, \u00a7 112). Such interference will be contrary to Article\u00a09 unless it is \u201cprescribed by law\u201d, pursues one or more of the legitimate aims set out in paragraph 2 and is \u201cnecessary in a democratic society\u201d (see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645\/94, \u00a7 34, ECHR 1999-I, and Bayatyan, cited above, \u00a7 112).<\/p>\n (b) Whether the interference was justified<\/p>\n (i) Prescribed by law and legitimate aim<\/p>\n 52. The Court notes at the outset that the parties disagreed as to whether the interference with the applicant\u2019s rights had been prescribed by law and pursued a legitimate aim. However, it does not consider it necessary to determine these issues, having regard to its conclusions set out below regarding the necessity of the interference (see, mutatis mutandis, Christian Democratic People\u2019s Party v. Moldova, no. 28793\/02, \u00a7\u00a7 49-54, ECHR\u00a02006\u2011II, and Bayatyan, cited above, \u00a7\u00a7 116-17).<\/p>\n (ii) Necessary in a democratic society<\/p>\n 53. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a \u201cdemocratic society\u201d within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Buscarini and Others, cited above, \u00a7 34; Leyla \u015eahin v. Turkey [GC], no. 44774\/98, \u00a7 104, ECHR 2005\u2011XI; and Bayatyan, cited above, \u00a7\u00a0118).<\/p>\n 54. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one\u2019s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of one\u2019s religion or belief may take, namely worship, teaching, practice and observance (see Hasan and Chaush v. Bulgaria [GC], no. 30985\/96, \u00a7 60, ECHR 2000\u2011XI, and Bayatyan, cited above, \u00a7 119).<\/p>\n 55. According to its settled case-law, the Court affords States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court\u2019s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Leyla \u015eahin, cited above, \u00a7 110). Furthermore, in so far as the Court has had an opportunity to consider the issue at hand, it has made clear that a State which has not introduced alternatives to compulsory military service in order to reconcile the possible conflict between individual conscience and military obligations enjoys only a limited margin of appreciation and must advance convincing and compelling reasons to justify any interference. In particular, it must demonstrate that the interference corresponds to a \u201cpressing social need\u201d (see Bayatyan, cited above, \u00a7 123).<\/p>\n 56. The Court has also held that any system of compulsory military service imposes a heavy burden on citizens. It will be acceptable if it is shared in an equitable manner and if exemptions from this duty are based on solid and convincing grounds. However, a system which imposes on citizens an obligation which has potentially serious implications for conscientious objectors, such as the obligation to serve in the army, without making allowances for the exigencies of an individual\u2019s conscience and beliefs and with imposition of penalties in case of refusal, will fail to strike a fair balance between the interests of society as a whole and those of the individual (ibid., \u00a7\u00a7 124 and 125).<\/p>\n 57. Turning to the circumstances of the present case, it is undisputed that the applicant is a member of the Jehovah\u2019s Witnesses who sought to be exempted from military service, not for reasons of personal benefit or convenience but on the ground of his genuinely held religious convictions (ibid., \u00a7 124; see also Bukharatyan v. Armenia, no. 37819\/03, \u00a7 48, 10\u00a0January 2012, and Tsaturyan v. Armenia, no. 37821\/03, \u00a7 44, 10 January 2012). While alternative civilian service was available in Armenia at the material time to conscientious objectors like the applicant (see paragraph 24 above), he was not able to take advantage of that option because he was apparently considered liable for military service in the \u201cNKR\u201d which, unlike Armenia, did not recognise the right to conscientious objection. The Government argued that the applicant, despite having applied to perform alternative civilian service, had had no guarantee that he would be allowed to perform it owing to the fact that he was an \u201cNKR\u201d citizen (see paragraph\u00a050 above). They failed, however, to produce any evidence in support of their allegation that the applicant was an \u201cNKR citizen\u201d and, in fact, it transpires from the case file that the applicant has been an Armenian passport-holder since 2012 (see paragraph\u00a05 above). The Government disregarded this fact and, consequently, failed to explain why the applicant, an Armenian national, had been prevented from exercising the right to conscientious objection bestowed on him under section 3 of the Alternative Service Act (see paragraph 24 above) and instead had had to face harsh criminal sanctions (see paragraph 19 above). Moreover, the authorities appear to have acted to prevent this from happening while the applicant\u2019s application for alternative service was already pending before the relevant Armenian authority (see paragraphs 11, 16 and 17 above).<\/p>\n 58. In any event, even assuming that the applicant was a \u201ccitizen\u201d of the \u201cNKR\u201d as argued by the Government, the Court is mindful of its finding above that Armenia was responsible for the acts and omissions of the \u201cNKR\u201d authorities and was under an obligation to secure in that area the rights and freedoms set out in the Convention. Therefore, the Government\u2019s argument that the \u201cNKR\u201d was a separate entity where the Alternative Service Act did not apply is artificial for the purposes of the present case (see, mutatis mutandis, Demopoulos and Others v. Turkey (dec.) [GC], nos.\u00a046113\/99 and 7 others, \u00a7 89, ECHR 2010). Thus, regardless of the reasons, the applicant, in the particular circumstances of his case, had no possibility \u2013 or was deprived of the possibility \u2013 to perform alternative civilian service instead of military service, a circumstance which led eventually to his conviction and imprisonment. This fact is sufficient for the Court to conclude that the authorities failed to make appropriate allowances for the exigencies of the applicant\u2019s conscience and beliefs and to secure to him a system of alternative service that struck a fair balance between the interests of society as a whole and those of the applicant, as required by Article 9 of the Convention. It follows that the applicant\u2019s conviction constituted an interference which was not necessary in a democratic society within the meaning of that provision (see Bayatyan, cited above, \u00a7\u00a7\u00a0124\u2011128; Bukharatyan, cited above, \u00a7 48-49; Tsaturyan, cited above, \u00a7\u00a044-45; and Adyan and Others v. Armenia, no. 75604\/11, \u00a7 72, 12 October 2017).<\/p>\n 59. There has accordingly been a violation of Article 9 of the Convention.<\/p>\n III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 60. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 61. The applicant claimed 36,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 62. The Government did not comment on the applicant\u2019s claim.<\/p>\n 63. The Court considers that the applicant has undoubtedly suffered non\u2011pecuniary damage as a result of his conviction and imprisonment. It awards him EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 64. The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and EUR 3,000 for those incurred before the Court.<\/p>\n 65. The Government did not comment on the applicant\u2019s claim.<\/p>\n 66. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.<\/p>\n C. Default interest<\/strong><\/p>\n 67. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, unanimously,<\/strong><\/p>\n 1. Rejects the Government\u2019s request to strike the application out of the list;<\/p>\n 2. Declares the complaint concerning an alleged violation of the applicant\u2019s right to freedom of thought, conscience and religion admissible;<\/p>\n 3. Holds that there has been a violation of Article 9 of the Convention;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 July 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Ilse Freiwirth \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Yonko Grozev ___________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judge Harutyunyan is annexed to this judgment.<\/p>\n Y.G.R. CONCURRING OPINION OF JUDGE HARUTYUNYAN<\/strong><\/p>\n I. Introduction<\/strong><\/p>\n Although the Court has already had the opportunity to express its position on the question of effective control in Nagorno-Karabakh and surrounding territories, it is worth noting that the positions expressed in Chiragov and Others v. Armenia ([GC], no. 13216\/05, ECHR 2015) are currently rather outdated in the light of recent developments and the results of the second Nagorno\u2011Karabakh war of 2020.<\/p>\n In Chiragov and Others, the Court held that a number of factors such as economic, financial and military ties made it possible to establish that Armenia had effective control over Nagorno\u2011Karabakh and thus should bear the responsibilities arising from its positive obligations. It is worth mentioning that the Court has underlined in its recent case-law that effective control is not equivalent to occupation within the meaning of international humanitarian law, if it is established on the basis of the Court\u2019s own criteria that are different from those of public international law.<\/p>\n In the light of the events of the forty-four-day war in and around Nagorno\u2011Karabakh, the situation of effective control fundamentally changed and the conclusions of the previous case-law of the Court are no longer valid. After the tripartite ceasefire statement[1] of 9 November 2020 imposed on Armenia (which gave rise to major international and constitutional law concerns), the effective control of Nagorno-Karabakh and seven surrounding regions was divided between two member States of the Council of Europe \u2013 Russia and Azerbaijan.<\/p>\n II. Facts<\/strong><\/p>\n A. Effective control over Nagorno-Karabakh and surrounding territories<\/strong><\/p>\n Following the 2020 Nagorno-Karabakh war, Azerbaijan gained control over the integral parts of Nagorno-Karabakh that it had seized during the fighting, including the districts of Hadrut and Shushi. It also maintained its control over four of the adjacent territories surrounding Nagorno-Karabakh that it had seized during the war, namely Qubadli, Zangilan, Jabrayil and Fuzuli, and was granted effective control of the remaining three territories of Aghdam, Lachin and Kalbajar through the tripartite ceasefire statement. The only territory whose effective control is currently not within the jurisdiction of Azerbaijan is the Lachin corridor (5 km wide) connecting Armenia to Nagorno-Karabakh. Control over the corridor is exercised by the armed forces of the Russian Federation.<\/p>\n The current area of Nagorno-Karabakh which was not transferred to Azerbaijan is placed under Russian \u201cboots on the ground\u201d. It should be recalled that the 9 November tripartite statement does not ensure an international peacekeeping mission in Nagorno-Karabakh but rather a Russian one, which was not duly agreed with the OSCE Minsk Group Co\u2011Chairs.<\/p>\n The Commander-in-Chief of the Russian military legion in Nagorno\u2011Karabakh is the de facto decision-maker. The Russian border guards stationed on the Armenia-Nagorno-Karabakh road through the Lachin corridor decide who can or cannot visit Nagorno-Karabakh. Many international journalists were recently refused entry to visit Nagorno-Karabakh to document post-war effects on people\u2019s lives.[2]<\/p>\n The change of effective control in Nagorno-Karabakh has largely contributed to the continuing violations of the newly formed Azeri\u2011Armenian border in the Gegharkunik and Syunik regions of Armenia by Azerbaijani troops. The enforced drawing of the border taking into account GPS connections and Google Maps (an application developed by a private company) gave rise to serious condemnation by the international community. Such a practice is not based on public international law and international public order.<\/p>\n This behaviour by Azerbaijan has allowed Russia to increase its military influence over Armenia, by placing its military personnel in the south of Armenia. In fact, Russia is boosting its feet on the ground in Armenia as an overriding criterion for enjoying effective control over Armenia. As of 17\u00a0June 2021, Russia is planning an additional deployment of its armed forces to the Syunik and Gegharkunik regions of Armenia.[3]<\/p>\n B. The impact of effective control on demographic change<\/strong><\/p>\n The territorial changes had a direct influence on the demographic picture of the region. The second Nagorno-Karabakh war of 2020 was accompanied by the departure of tens of thousands of ethnic Armenian residents from the long-time settlements of Hadrut and Shushi in the southern part of Nagorno\u2011Karabakh, as well as from territories outside the region.[4] As the military and political control over these districts changed, the entire population of Hadrut and Shushi had to flee under constant threat to their lives and property.<\/p>\n The expulsion of the Armenian population from Nagorno-Karabakh and surrounding regions was accompanied by execution videos of Armenian soldiers and civilians shared via multiple social media outlets, as well as videos of the demolition of homes and destruction of the cultural and religious heritage of Armenians in Hadrut and Shushi especially.[5] [6] [7] No case has been brought in Azerbaijan against the perpetrators of those crimes against the Armenians.<\/p>\n Furthermore, a State-sponsored Armenophobia element has emerged in Azerbaijani society after the end of the war. The so\u2011called \u201cTrophy Park\u201d inaugurated in Baku by the Azerbaijani President displays Armenian military equipment taken as a trophy during the war and shows dehumanising scenes, including wax mannequins depicting dead and dying Armenian soldiers. In her strong letter of condemnation to the President of Azerbaijan, the Council of Europe Commissioner for Human Rights Dunja Mijatovi\u0107 stated: \u201cThis kind of display can only further intensify and strengthen long\u2011standing hostile sentiments and hate speech, and multiply and promote manifestations of intolerance.\u201d[8] The official reply by the Office of the President of Azerbaijan, demonstrating a refusal to prevent the continued damage and human suffering caused to the Armenian population by the conflict,[9] is yet further proof that the Armenian refugees cannot count on a safe return to their homes and on having a decent life free from discrimination, inhuman and degrading treatment and threats to their lives. Therefore, as previously argued by Armenia and local Armenians, the jurisdiction of Azerbaijan is dangerous to the safety of ethnic Armenians indigenous to those lands and the Armenian cultural heritage. The element of ethnic hatred towards Armenians in Azerbaijan has also been recognised by the Court in various cases (see, for example, Makuchyan and Minasyan v. Azerbaijan and Hungary, no. 17247\/13, 26 May 2020, and Saribekyan and Balyan v. Azerbaijan, no. 35746\/11, 30 January 2020).<\/p>\n Azerbaijan has continued to hold Armenian prisoners of war, in grave violation of international humanitarian and international human rights law, despite many calls from the international community to release them. On 20\u00a0May 2021 the European Parliament condemned Azerbaijan for holding and torturing Armenian prisoners of war and other captive persons in degrading conditions since the end of the active stage of hostilities. It also called on the Government of Azerbaijan to cooperate with the European Court of Human Rights and to comply with the interim measures in place. Finally, the European Parliament demanded \u201cthe immediate and unconditional release of all Armenian prisoners, both military and civilian, detained by Azerbaijan during and after the conflict, and that Azerbaijan refrain from detaining people arbitrarily in the future\u201d.[10]<\/p>\n C. Occupied positions and effective control by Azerbaijan over the sovereign territory of Armenia<\/strong><\/p>\n Although there have been a number of clashes between Azerbaijani and Armenian armed forces on the new line of contact created as a result of the November ceasefire statement, reports of a targeted invasion of certain areas deep within the internationally recognised borders of Armenia emerged in early May 2021. In particular, on 12 May 2021 several hundred Azerbaijani soldiers advanced 3.5 kilometres into the international border area around Ishkhanasar in the Syunik province of Armenia around Lake Sev (Sev Lij). A similar intrusion was also halted south of the village of Verin Shorja in the Gegharkunik province, territories which were never part of Azerbaijan during the Soviet era.[11] Thus, certain territories inside Armenia are currently under the effective control of Azerbaijan. The Russian troops additionally deployed in Armenia \u201cto protect it from external threats\u201d did not implement their international obligations.<\/p>\n The international reaction to the occupation of certain strategic territories in Armenia was strong and supportive of Armenia\u2019s territorial integrity.<\/p>\n On 27 May 2021 the US State Department indicated that it was concerned \u201cby recent developments along the international border between Armenia and Azerbaijan, including the detention of several Armenian soldiers by Azerbaijani forces\u201d.[12] Moreover, it stated: \u201cSpecifically, we call on Azerbaijan to relocate its forces to the positions they held on May\u00a011. We also call on Armenia to relocate its forces to the positions they held on May\u00a011, and welcome statements of intent to this effect. These actions will de-escalate tensions and create space for a peaceful negotiation process to demarcate the border on an urgent basis. The United States is prepared to assist these efforts.\u201d<\/p>\n On 14 May 2021 the President of France, Emmanuel Macron, gave a statement which read as follows: \u201cAzerbaijani armed forces have crossed into Armenian territory. They must withdraw immediately. I say again to the Armenian people: France stands with you in solidarity and will continue to do so.\u201d[13] On 27 May 2021 the Ministry for Europe and Foreign Affairs of France expressed \u201cits deep concern over the increasing number of incidents seen on the border between Armenia and Azerbaijan, the latest of which was the capture of six Armenian soldiers by Azerbaijani forces during the night of May 26\u201d and reaffirmed President Macron\u2019s statement of 14 May.[14] On 1 June 2021 the French President again stated that \u201cthe Azerbaijani troops must leave Armenia\u2019s sovereign territory\u201d and called on the parties \u201cto return to the positions held\u201d.[15]<\/p>\n On 28 May 2021 the European Union External Action Service issued a statement calling for a return to the positions held before 12 May 2021. The statement read as follows: \u201cAll forces should pull back to positions held before 12 May and both sides should engage in negotiations on border delimitation and demarcation. We continue to call on Azerbaijan to release all prisoners of war and detainees without delay.\u201d[16]<\/p>\n Finally, the OSCE Minsk Group Co-Chairs in a statement of 28 May 2021 called on Azerbaijan to \u201crelease … all prisoners of war and other detainees on an all for all basis\u201d and noted that \u201cthe use or threat of force to resolve border disputes is not acceptable\u201d.[17]<\/p>\n III. Conclusion<\/strong><\/p>\n In the light of the foregoing, the Court must develop a clearer formulation as its previous case-law on the subject of effective control in Nagorno-Karabakh and surrounding territories no longer corresponds to the present-day reality. More specifically, the Court must clarify that Armenia no longer has effective control over Nagorno\u2011Karabakh and surrounding territories. In fact, the forty-four-day war revealed two \u201cbeneficiaries\u201d of effective control over Nagorno-Karabakh and surrounding territories: the Russian Federation for the remaining parts of Nagorno-Karabakh, the Lachin corridor and the ongoing reinforcement of its \u201cboots on the ground\u201d in Armenia; and Azerbaijan for all territories surrounding Nagorno\u2011Karabakh, the Shushi and Hadrut regions of Nagorno\u2011Karabakh and several parts of Armenian territory in the Syunik and Gegharkunik regions. Statements given by Russia and Azerbaijan on implementing demarcation and delimitation without the participation of the other two members of the OSCE Minsk Group Co-Chairs \u2013 France and the United States \u2013 go against the internationally recognised format for settling the Nagorno-Karabakh conflict.<\/p>\n ______________<\/p>\n [1] Kremlin, Statement by the President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia and the President of the Russian Federation, published 10\u00a0November 2020. http:\/\/en.kremlin.ru\/events\/president\/news\/64384
\nTim Eicke,
\nFaris Vehabovi\u0107,
\nIulia Antoanella Motoc,
\nArmen Harutyunyan,
\nPere Pastor Vilanova,
\nJolien Schukking, judges,
\nand Ilse Freiwirth, Deputy Section Registrar,<\/p>\n![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n
\nI.F.<\/p>\n
\n[2] Reporters Without Borders, \u201cRussian peacekeepers deny foreign reporters access to Nagorno-Karabakh\u201d, 9 April 2021. https:\/\/rsf.org\/en\/news\/russian-peacekeepers-deny-foreign-reporters-access-nagorno-karabakh
\n[3] https:\/\/mil.am\/hy\/news\/9547
\n[4] Congressional Research Service, \u201cAzerbaijan and Armenia: The Nagorno-Karabakh Conflict\u201d, 7 January 2021, p. 15. https:\/\/fas.org\/sgp\/crs\/row\/R46651.pdf
\n[5] Human Rights Watch, \u201cAzerbaijan: Armenian Prisoners of War Badly Mistreated: Investigate, Prosecute Violations; Ensure Protection of All Military Detainees\u201d, 2\u00a0December 2020. https:\/\/www.hrw.org\/news\/2020\/12\/02\/azerbaijan-armenian-prisoners-war-badly-mistreated
\n[6] Human Rights Watch, \u201cAzerbaijan: Armenian POWs Abused in Custody: Investigate Abuse; Protect All Detainees\u201d, 19 March 2021. https:\/\/www.hrw.org\/news\/2021\/03\/19\/azerbaijan-armenian-pows-abused-custody
\n[7] Zartonk Media, \u201cAzeris Publish Videos of their Soldiers Humiliating & Killing Two Armenian Captives, One an Elderly Civilian\u201d, 15 October 2020. https:\/\/zartonkmedia.com\/2020\/10\/15\/azeris-publish-videos-of-their-soldiers-humiliating-killing-two-armenian-captives-one-an-elderly-civilian\/
\n[8] Letter from the Council of Europe Commissioner for Human Rights, 27 April 2021. https:\/\/www.coe.int\/en\/web\/commissioner\/-\/azerbaijan-efforts-to-deal-with-the-past-should-become-the-priority-to-ensure-reconciliation-andlasting-peace
\n[9] Reply of the Permanent Representative of the Republic of Azerbaijan to the Council of Europe, 20 April 2021. https:\/\/rm.coe.int\/reply-of-the-azerbaijani-authorities-to-the-letter-of-the-council-of-e\/1680a24413
\n[10] European Parliament resolution of 20 May 2021 on prisoners of war in the aftermath of the most recent conflict between Armenia and Azerbaijan (2021\/2693(RSP)). https:\/\/www.europarl.europa.eu\/doceo\/document\/TA-9-2021-0251_EN.html (emphasis added).
\n[11] https:\/\/mirrorspectator.com\/2021\/05\/24\/armenia-rules-out-border-demarcation-talks-until-azerbaijani-forces-pull-out-of-armenian-territory\/
\n[12] https:\/\/www.state.gov\/detention-of-armenian-soldiers\/
\n[13] https:\/\/twitter.com\/EmmanuelMacron\/status\/1392965873187659778
\n[14] https:\/\/www.diplomatie.gouv.fr\/en\/country-files\/armenia\/news\/article\/armenia-azerbaijan-incidents-on-the-border-between-armenia-and-azerbaijan-may
\n[15] https:\/\/www.rferl.org\/a\/france-macron-nagorno-karabakh\/31284862.html
\n[16] https:\/\/eeas.europa.eu\/headquarters\/headquarters-homepage\/99246\/armeniaazerbaijan-statement-spokesperson-recent-developments-border_en
\n[17] https:\/\/www.osce.org\/minsk-group\/487879<\/p>\n