By Tobias Thienel
The Grand Chamber of the European Court of Human Rights has recently heard oral argument in the case of Bayatyan v Armenia. I have not yet watched the webcast of the hearing, but I would like to quickly flag the important issues raised by the case. This I will do primarily by reference to the Chamber judgment that is now being ‘appealed’ to the Grand Chamber.
The facts of the case are fairly straightforward: At the relevant time, Armenian law provided for an absolute obligation of national service in the armed forces. There was no right of conscientious objection, either in the form of choosing an alternative form of civilian national service, or as a general release from all national service. The applicant objected to all military service, being a Jehovah’s Witness. He therefore refused to perform national service. As a consequence, he had to spend time in prison.
When his case came to Strasbourg, the applicant’s argument chimed perfectly with a very strong trend in recent – and not so recent – European practice. Very nearly all member States of the Council of Europe had recognised a right of conscientious objection (if they had any national service at all). Also, the Parliamentary Assembly of the Council of Europe had expressly regarded conscientious objection as a fundamental aspect of the freedom of religion in Europe, and the right had been similarly recognised in the Charter of Fundamental Rights of the EU. Moreover, recognition of conscientious objection had even become a condition for admission to membership in the Council of Europe.
Armenia itself had therefore given an undertaking that it would recognise conscientious objection and allow for a civilian form of national service. This it has by now done, but the amendment did not come in time for the applicant’s case. Nor did the applicant succeed at Strasbourg.
The reasoning of the Chamber had to start off from Article 9 ECHR, on the freedom of religion. However, what was dispositive was not so much Article 9 itself, but rather Article 4 (3) (b) of the Convention. This provides as follows:
The term "forced or compulsory labour" [as employed in the general prohibition in Article 4 (2)] shall not include: […] (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service. (Emphasis added)
The decisive phrase in this provision for the Bayatyan case (as in a few older Commission cases) turned out to be the phrase ‘in countries where they are recognised’. The Chamber – like the Commission before it – took this choice of phrase to mean that Article 4 ‘left the choice of recognising conscientious
objectors to each Contracting Party’ (Bayatyan, para 63). This being so, the Strasbourg organs reasoned, Article 9 could not require States to do something (namely recognise conscientious objection) that Article 4 declared a matter of their free choice.
Given this implication from Article 4 for the interpretation of Article 9, the Chamber found that the strong trend in European practice could not assist the applicant. In these circumstances, the standard of protection prevailing in the member States could not ‘serve a useful purpose for the
evolutive interpretation of the Convention’ (Bayatyan, para 63).
Bayatyan therefore illustrates a fundamental issue in the methodology of the European Court of Human Rights: If the interpretation of the Convention is to be influenced by the common practice in the field of human rights of European States (which it is), where does such influence stop? At which point is the Convention itself so clear as to rule out interpretation ‘in the light of present-day conditions’ (see Tyrer v United Kingdom, para 31)?
The Court has had to grapple with this problem a fair few times already. One starts, of course, with the realisation that ‘[i]nterpretation, albeit a necessary tool to render
the protection of Convention rights practical and effective, can only
go so far’ (Quark Fishing Ltd v United Kingdom (dec)). Interpretation therefore cannot unwrite provisions contained in the Convention (ibid). Nor can it create rights that have no foothold in the Convention (Johnston and Others v Ireland, para 53).
All this requires, however, that the text of the Convention really is fairly dispositive of the matter. In this case, I admit to harbouring very considerable doubts that it is. If Article 4 (3) (b) of the Convention removes the work required of conscientious objectors ‘in countries where they are recognised’ from the scope of Article 4 (2) (the prohibition of forced labour), that might as well leave open whether conscientious objection had to be recognised or not. This question is, on any view, a difficult and momentous issue under Article 9, so it was always sensible not to have Article 4 take any position on this.
It must be admitted, however, that there is something to be said for the view of the Chamber. It cannot be argued, in particular, that the ‘where they are recognised’ clause only leaves open whether States will have any system of national service or not. Certainly, that is not a necessity. But the permission clauses of the Convention never say ‘if States wish to do this, they may do X’. They simply go ahead and allow it, just in case, as it were. Also, if that was what Article 4 (3) (b) had meant to say it would have had to apply the proviso also to the possibility of military national service. It hasn’t.
But this still doesn’t prove that Article 4 (3) (b) affirmatively puts the recognition of conscientious objection at the liberty of contracting States. In fact, that would be an odd thing for a human rights treaty to do. Surely, such treaties start from the presumption that States can do all kinds of things, and then proceed to outlaw some of them. There is little point in Article 4 allowing something, other than for the purpose of taking them out of the prohibitions of Article 4 itself. It is not particularly useful, certainly, for Article 4 to allow something to the detriment of Article 9.
Most fundamentally, however, the Court has recently taken a fairly liberal attitude to the possibility of contemporaneous and contra-textual interpretation (on previous, somewhat less liberal case-law, see my post here):
– In Al-Saadoon and Mufdhi v United Kingdom (para 120), the Court held that the ostensible permission of capital punishment in Article 2 could no longer take such punishment out of Article 3 of the Convention, because later practice ‘strongly indicat[ed] that Article 2 ha[d] been amended so as to prohibit the death penalty in all circumstances’. The doubts expressed about such a proactive interpretation in Öcalan v Turkey (GC) (para 165) were obviously no longer decisive. Of course, subsequent practice against the death penalty had been enormously powerful. But so, it might be argued, has been the push for the right of conscientious objection. It doesn’t get much stronger than an actual condition for admission to the Council of Europe.
– Also, in Schalk and Kopf v Austria (para 61), the Court abandoned previous case-law to the effect that a marriage within the meaning of Article 12 could only ever exist between a man and a woman. The Court had previously derived this directly from the wording of Article 12, and still does maintain that the wording is to be so interpreted (ibid, para 55). Nonetheless, in the face of Article 9 of the Charter of Fundamental Freedoms of the EU, the Court relented a little.
This being so, it would seem that textualism has recently taken a back seat to more spirited methods of construction. It will be interesting to see, therefore, what the Grand Chamber will make of this case.
Speaking for myself, I have found it interesting to see the Strasbourg Court take a more classical, textual approach to interpretation for once, as opposed to its more common dynamic and purposive – even proactive – methodology. Cases like this one, however, where 21st century Europe comes up against 1940’s drafting, may conceivably call for the latter over the former. We shall see.