Issue 47 December 2009 - Human Rights Stop Press

 

The European Court of Human Rights has produced a number of interesting decisions over the last few months covering wide range of articles of the ECHR

In Bayatyan v Armenia (App. No.23459/03), the appli­cant was an Armenian national He is a Jehovah's Witness. Declared fit for military service, the applicant became eligi­ble for the Spring draft of 2001. In letters sent, among oth­ers, to the General Prosecutor and the Military Commissioner he declared that he refused to perform mil­itary service for conscientious reasons but that he was pre­pared to do alternative civil service. He did not appear for military service in mid-May 2001, as ordered by a summons, and temporarily moved away from home so that he would not be drafted by force. Two weeks later the Parliamentary Commission for State and Legal Affairs informed the ap­plicant that since there was no law in Armenia on alterna­tive service, he was obliged to serve in the Armenian army. In October 2001 the applicant was charged with draft eva­sion. Placed in detention, the district court convicted him as charged in October 2002 and sentenced him to one year and six months in prison, later increased by the Court of Appeal to two and a half years. That court stated essentially that the applicant did not accept his guilt and that he had hid­den from preliminary investigation. The judgment was up­held by the Court of Cassation in January 2003. In July of that year the applicant was released on parole after having served 10 and a half months of his sentence.

The applicant complained to the Strasbourg Court that his conviction for refusal to serve in the army had violated his right to freedom of thought, conscience and religion as guaranteed by art.9 of the Convention. He also submitted that the article should be interpreted in the light of present-day conditions, namely the fact that the majority of Coun­cil of Europe Member States had recognised the right of conscientious objection and that Armenia in 2000, before becoming a member, had committed to "pardon all con­scientious objectors sentenced to prison terms".

The Court first noted that it was legitimate to take ac­count of the fact that a majority of the Council of Europe Member States had adopted laws providing for alternative service for conscientious objectors. However, art.9 had to be read together with art4(3) (b), which excluded from the definition of forced labour, as prohibited by the Conven­tion, ' 'any service of a military character or, in cases of con­scientious objectors, in countries where they are recognised, service exacted instead of compulsory military service". It followed that the choice whether or not to recognise con­scientious objectors was left to each contracting party. At the time of the applicant's refusal to perform military serv­ice, the right to conscientious objection was not recognised in Armenia. His conviction had therefore not been in breach of his Convention rights, even though he could have had a legitimate expectation to be allowed to perform al­ternative service, given the Armenian Governments decla­ration to pardon conscientious objectors.

In Appel-lrrgang v Germany (App.No.45216/07) the ap­plicants, Johanna Appel-Irrgang and her parents, Kerstin Appel and Ronald Irrgang, were German nationals who disagreed with a law modifying the Berlin School Act, which took effect in August 2006 and which made it mandatory for pupils of grade 7 to 10 to attend ethics classes in school, because the instruction's secular character would be con­trary to their Protestant belief. They lodged a constitutional complaint against the law with the Federal Constitutional Court in April 2006, which was declared inadmissible in July 2006 for non-exhaustion of the legal remedies.

Following this decision, the applicants requested the school to exempt the first applicant from attending ethics classes and brought expedited proceedings before the Berlin Administrative Court with the aim of obtaining a prelimi­nary exemption. In August 2006 the court rejected the re­quest, finding that the applicants had not given a valid reason that would justify a complete exemption and that manda­tory ethics classes were not in breach of the German basic law. The decision was upheld by the Administrative Court of Appeal in November 2006. In March 2007 a second constitutional complaint lodged by the applicants against the law was rejected by the Federal Constitutional Court.

Relying on art.9 of the Convention (freedom of thought, conscience and religion), the applicants com­plained of the first applicant's obligation to attend ethics classes, which they considered contrary to the State's ob­ligation of religious neutrality. They claimed that the State supervision of the school system prescribed by the basic law of Germany did not constitute a necessary limitation of the freedom of religion in the sense of art.9(2) of the Convention. They also invoked art.2 of Protocol No.l to the Convention (the right of parents to ensure education in conformity with their religious convictions).

The Strasbourg Court held that the applicants' com­plaints had to be considered principally in the light of art.2 of Protocol No.l to the Convention. It pointed out that defining the school curriculum fell within the competence of the contracting States, which had to make sure it did not pursue any ideological objectives disrespectful of par­ents' religious or philosophical convictions.

Regarding the applicants' claims that the ethics classes were not neutral, the Court observed that according to the relevant provisions of the Berlin School Act, the ethics classes' aim was to examine fundamental questions of ethics independently of pupils' cultural, ethnic and reli­gious origins and that the classes were therefore in con­formity with the principles of pluralism and objectiveness established by art.2 of Protocol No.l. The Court referred to the Federal Constitutional Court's decision which had noted that, according to the curriculum of the ethics classes, teachers were not allowed to unduly influence pupils. Moreover, the applicants had not pleaded that the course as it had actually been taught in the school year 2006-2007 had been disrespectful of their religious beliefs.

Addressing the applicants' complaint that, despite the Christian tradition of Germany, the Christian religion was not adequately represented in the ethics course, the Court noted that it fell within a State's margin of discretion to de­cide whether or not a school curriculum was, in view of the country's tradition, to dedicate more attention to a par­ticular religion and whether ethics should be taught in sep­arate classes, split on the basis of pupils' religious beliefs, or in one common class. As regards the applicants' claims that the ethics course was contrary to their religious belief, the Court observed that neither the School Act nor the curriculum gave priority to one particular belief It was not possible to deduce from the Convention a right not to be exposed to convictions other than one's own. Moreover, nothing impeded the first applicant from continuing to attend the Protestant religion course offered by the school.

The Court concluded that by introducing mandatory ethics classes, the Berlin authorities had not exceeded the margin of appreciation conferred by art.2 of Protocol No.l and that they were therefore not obliged to allow a general exemption from the course. The fact that another German Land, Brandenburg, had decided to allow such an exemption made no difference to this conclusion. Ac­cordingly the applicants' complaints were manifestly ill-founded and hence inadmissible.

In Karapetyan v Armenia (App. No.22387/05) the Court found violations of art.3 (prohibition of inhuman and degrading treatment); art6(l) (right to a fair trial) taken together with art6(3)(b) (right to adequate time and facil­ities for preparation of defence) and art.2 of Protocol No.7 (right of appeal in criminal matters) and in the related case of Stepanyan v Armenia (App. No.45081/04) a viola­tion of art6(l).

The applicants are two Armenian nationals. Follow­ing alleged irregularities in the 2003 presidential elections, the applicants alleged that they were sentenced to admin­istrative detention on account of their political opinions and/or activities. Both applicants were arrested (Mr Kara­petyan in March 2003 and Mr Stepanyan in May 2004), and, within the same day, were taken to their local police station, charged, brought before a court and convicted under art 182 of the Code of Administrative Offences to, respectively, ten and eight days' detention for disobey­ing the police and using obscene language.

Mr Karapetyan complained about the conditions of his detention when serving that sentence, notably over­crowding, poor ventilation, lack of natural light and inad­equate food. Mr Stepanyan, who was released after six days of detention on health grounds, lodged an extraor­dinary appeal to the Criminal and Military Court of Ap­peal. In that appeal he denied at length the account of events as presented by his arresting police officers, the only witnesses at his trial, and on the basis of which he was convicted. In June 2004 the President of the Court of Appeal, in the light of written submissions and without having heard the police officers or the applicant, upheld Mr Stepanyan's conviction. Both applicants relied in par­ticular on art.6, complaining about the unfairness of the proceedings against them, notably that their cases were examined in an expedited procedure, therefore not giv­ing them adequate time and facilities for the preparation of their defence. Mr Stepanyan further alleged that there had been no oral hearing before the Criminal and Military Court of Appeal which tried him. Mr Karapetyan also complained that he had no appeal procedure at his dis­posal, in breach of art.2 of Protocol No.7. Lastly, Mr Karapetyan complained that the conditions of his deten­tion were in breach of art.3.

The Strasbourg Court noted that Mr Karapetyan had had no more than 1.25 square metres of personal space - less than the Council of Europe's European Committee for the Prevention of Torture and Inhuman or Degrad­ing Treatment or Punishment ("the CPT's") standard minimum requirement of four square metres per inmate in multi-occupancy cells - in a pest-infested cell with lack of natural light, no sleeping facilities and an unsanitary toilet. Although his detention had been relatively short, the Court held unanimously that those conditions had to have caused the applicant suffering, diminishing his human dig­nity and arousing in him feelings of humiliation and infe­riority, in violation of art3.

On art6, as in a number of other similar cases against Armenia in which the Court had already found a violation of art6(3) (b), the Court noted that the administrative case against Mr Karapetyan had been examined in an expe­dited procedure during which he had been taken to and kept in a police station without any contact with the out­side world, charged, and, in a matter of hours, brought before a court and convicted. It therefore held unani­mously that Mr Karapetyan had not had a fair hearing in his case, in particular on account of him not having been given adequate time and facilities for the preparation of his defence, in violation of art.6(3)(b) and art6(l).

The Court found that Mr Stepanyan's complaints under art.6 about the expedited proceedings of his con­viction of May 2004 had been lodged out of time and declared them inadmissible. In relation to his complaint about the unfairness of the extraordinary appeal pro­ceedings in which his conviction had been upheld, the Court considered that the applicant's guilt or innocence could not have been properly determined without a direct assessment of the evidence given in person by the appli­cant and the two police officers in question. It therefore held unanimously that Mr Stepanyan had not had a fair trial before the Criminal and Military Court of Appeal on account of the lack of an oral hearing in his case, in violation of art6(l).

On art.2 of Protocol No.7 the Court found, as in other cases previously brought before it against Armenia, that the procedure under which Mr Karapetyan had been convicted had not provided him with a clear and accessi­ble right to appeal, it having lacked any dearly-defined pro­cedure or time-limits or consistent application in practice. The Court therefore held unanimously that there had been a violation of art.2 of Protocol No.7.