Το Ευρωπαικό δικαστήριο ανθρωπίνων δικαιωμάτων, ενάντια στην αντίρρηση συνείδησης (en) ...

In a judgement on a case
of a conscientious objector from Armenia, the European Court of Human
Rights in Strasbourg today decided against the right to conscientious
objection.

In its judgement, the Court reviewed old case law:

The Commission found that Article 9, as qualified by Article 4 § 3 (b),
did not impose on a state the obligation to recognise conscientious
objectors and, consequently, to make special arrangements for the
exercise of their right to freedom of conscience and religion as far as
it affected their compulsory military service. It followed that these
Articles did not prevent a State which had not recognised conscientious
objectors from punishing those who refused to do military service (no.
5591/72, Commission decision of 2 April 1973, Collection 43, p. 161).

(...)

The finding that the right of conscientious objection was not
guaranteed by any article of the Convention was upheld by the
Commission on numerous subsequent occasions (see, mutatis mutandis, N.
v. Sweden, no. 10410/83, Commission decision of 11 October 1984, DR 40,
p. 203; Autio v. Finland, no. 17086/90, Commission decision of 6
December 1991, DR 72, p. 245; Peters, cited above; and Heudens, cited
above).

(...)

The Court does not deny that the majority of member states of the
Council of Europe have indeed adopted laws providing for various forms
of alternative service for conscientious objectors. At the same time,
the Court cannot overlook the provisions contained in Article 4 § 3 (b)
of the Convention summarised above (see paragraphs 56-57 above). In the
Court's opinion, since this Article clearly left the choice of
recognising conscientious objectors to each Contracting Party, the fact
that the majority of the Contracting Parties have recognised this right
cannot be relied upon to hold a Contracting Party which has not done so
to be in violation of its Convention obligations. Consequently, as far
as this particular issue is concerned, this factor cannot serve a
useful purpose for the evolutive interpretation of the Convention. In
such circumstances, the Court concludes that Article 9, read in the
light of Article 4 § 3 (b), does not guarantee a right to refuse
military service on conscientious grounds.

This judgement is a huge disappointment. The Court did not even
mention more recent case law of the UN Human Rights Committee under the
International Covenant on Civil and Political Rights (ICCPR),
especially the case Yeo-Bum Yoon and Mr. Myung-Jin Choi vs. Republik of Korea
(23 January 2007), which clearly stated that not to provide for the
right to conscientious objection constitutes a violation of article 18
of the ICCPR, which is equivalent to article 9 of the European
Convention of Human Rights.

In this decision, the Human Rights Committee dealt with exactly the same argument relating to the prohibition of forced labour:

"The
Committee notes the authors’ claim that article 18 of the Covenant
guaranteeing the right to freedom of conscience and the right to
manifest one’s religion or belief requires recognition of their
religious belief, genuinely held, that submission to compulsory
military service is morally and ethically impermissible for them as
individuals. It also notes that article 8, paragraph 3, of the Covenant
excludes from the scope of “forced or compulsory labour”, which is
proscribed, “any service of a military character and, in countries
where conscientious objection is recognized, any national service
required by law of conscientious objectors”. It follows that the
article 8 of the Covenant itself neither recognizes nor excludes a
right of conscientious objection. Thus, the present claim is to be
assessed solely in the light of article 18 of the Covenant, the
understanding of which evolves as that of any other guarantee of the
Covenant over time in view of its text and purpose.
"

The European Court of Human Rights, however, seems to be stuck in
the old argument that the exclusion of military and substitute service
where it exists from the definition of forced labour basically is a
statement also regarding the right to conscientious objection.

The only positive aspect in the judgement is the dissenting opinion of judge Power, who states that "[a]dopting
the Court's general approach to interpreting and applying the
Convention in the light of current legal norms and standards I cannot
but conclude that there has been a violation of Article 9 in this case.
"

And: "In view of the foregoing, it would appear that the
majority's finding is not just incompatible with current European
standards on the question of conscientious objection but that it parts
company with the Court itself in terms of the overall direction of the
jurisprudence as discernible in the case law.
"

This means for now the European Court of Human Rights is not the way
to go for conscientious objectors. The only chance to get recognition
of the human right to conscientious objection will be to file
individual complaints under the International Covenant on Civil and
Political Rights with the United Nations Human Rights Committee.

Andreas Speck

Ημερομηνία: 
Τρίτη, October 27, 2009