The Grand Chamber of the European Court of Human Rights has ruled that citizens have the right to refuse to participate in military service on religious grounds.

It is the first time that the right of conscientious objection to military service has been explicitly recognised under the European Convention on Human Rights (ECHR).

Gregor Puppinck, the director of the European Centre of Law and Justice, suggested that the Court’s ruling on the right to conscientious objection based on religion “could be applicable to fields other than military service”. 

He referred to the cases of Lilian Ladele, a civil registrar who refused to conduct same-sex civil union ceremonies and Gary McFarlane, a counsellor who refused to give sex counselling to same-sex couples, and suggested that the Court’s ruling might have a bearing on their cases.

In a case involving an Armenian member of the Jehovah’s Witnesses, Mr Vahan Bayatyan, the Court found that Article 9 of the European Convention of Human Rights, which protects freedom of conscience and religion, applied to to conscientious objection to military service.

In 2001 Mr. Bayatyan was imprisoned for 18 months for his refusal to perform military service. His sentence was increased by one year after the Prosecutor appealed for a harsher sentence, claiming that his conscientious objection was “unfounded and dangerous”. 

This was despite the fact that Armenia, upon joining the Council of Europe in 2001, introduced civilian service as an alternative to compulsory military service within three years and pardoned all conscientious objectors sentenced to imprisonment. 

Moreover, at no time was Mr Bayatyan given the option of performing this service. 

Those Jehovah’s Witnesses who did embark on the service found that it was not clearly civilian in nature and included requirements such as the swearing of a military oath and the wearing of military uniforms that were unacceptable to them.

The ruling from the Grand Chamber overturns established case law, which held that the original intention of the States not to include an explicit right to conscientious objection in the drafting of the ECHR prevented its jurisprudential creation by the Court. 

During the drafting of the ECHR, a proposal which would have exempted conscientious objectors from military service was rejected by contracting States.

The Court based its new approach on the doctrines of the “practical and effective rights” and of the “Convention seen as a living instrument”. 

According to these doctrines, the ruling said “the Convention is interpreted and applied in a manner which renders rights practical and effective, not theoretical and illusory” and “in the light of the present-day conditions and of the ideas prevailing in democratic States today”, taking into consideration “the changing conditions in the member States and the emerging consensus as to the standards to be achieved”. 

The ruling was welcomed by Amnesty International, Conscience & Peace Tax International, International Commission of Jurists, Quaker United Nations Office, and the European Centre for Law and Justice (ECLJ).

Amnesty International called on Turkey and Azerbaijan, the only two parties to the ECHR who do not yet provide for conscientious objection to military service, “to take immediate steps to do so”.