FORUM 18 NEWS SERVICE, Oslo, Norway
The right to believe, to worship and witness
The right to change one’s belief or religion
The right to join together and express one’s belief
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18 November 2009
UZBEKISTAN: REPRESSION OF MUSLIM AND CHRISTIAN RELIGIOUS ACTIVITY
CONTINUES
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Mekhrinisso Hamdamova, a Muslim holding a state appointment, has been
arrested for holding unauthorised religious meetings in her home, Forum 18
News Service has learned. She faces very serious charges, the authorities
claiming that she was attempting to overthrow the President and the
"constitutional order", and inciting religious hatred. Over 30 of her
family and others have been arrested, human rights defender Surat Ikramov
told Forum 18. The official overseeing religious issues in Hamdamova’s city
told Forum 18 "probably she did something unlawful so she was arrested." 11
Protestants have been fined because they were together for a meal in a
friend’s house, the fines ranging between 50 and 10 times the minimum
monthly wage. Similarly 17 Protestants have been fined for possessing
"illegal" religious literature. The judge in the latter case, asked why he
ordered a copy of the New Testament in Uzbek and other literature to be
destroyed, angrily told Forum 18 that "it was all kept illegally." Finally
an appeal following the conviction of Baptists for running a children’s
holiday camp is due on 4 December. A mysterious "burglary" of a relative of
one of the Baptists has also taken place.
19 November 2009
COMMENTARY: THE EUROPEAN COURT OF HUMAN RIGHTS – OUT OF STEP ON
CONSCIENTIOUS OBJECTION
le_id=1377
The European Court of Human Rights in Strasbourg (ECHR) has recently made
a very dangerous judgement for freedom of religion or belief in the
Bayatyan v. Armenia case which puts it out of step with the international
standards on conscientious objection to military service and with the
Council of Europe’s own human rights agenda, notes Derek Brett of
Conscience and Peace Tax International <; in a commentary
for Forum 18 News Service <;. The Court, apparently
unaware of the recent parallel jurisprudence under the International
Covenant on Civil and Political Rights, found no violation of the freedom
of thought, conscience and religion in the imprisonment of a Jehovah’s
Witness for his refusal on grounds of conscientious objection to perform
military service, or the subsequent increase in the sentence, which had
been partly justified by his reasons for refusal. Brett argues that it is
vital that the Grand Chamber of the ECHR agrees to hear the appeal in the
Bayatyan case, as it alone can overturn the precedent which this will
otherwise set for future ECHR cases.
* See full article below. *
19 November 2009
COMMENTARY: THE EUROPEAN COURT OF HUMAN RIGHTS – OUT OF STEP ON
CONSCIENTIOUS OBJECTION
cle_id=1377
By Derek Brett, Conscience and Peace Tax International
<;
Two recent Chamber judgements from the European Court of Human Rights in
Strasbourg (ECHR) have caused considerable disquiet to defenders of freedom
of religion or belief; those in the cases of Lautsi v. Italy and Bayatyan v
Armenia. Of the two, the 3 November Lautsi verdict (Application no.
30814/06) has attracted the most attention. By seeming to invent a right
not to be offended by other people’s religious symbols, it has been seen by
some commentators to pose a serious threat to the linked rights of freedom
of expression and freedom of religion or belief, in a way parallel to the
long-running debate about so-called "defamation of religions", because all
non-religious and religious beliefs, and their symbols, may cause offence
to some people.
However the present commentary focusses on the even more dangerous verdict
delivered a week earlier, on 27 October 2009, in Bayatyan v. Armenia
(Application no. 30814/06)
< /viewhbkm.asp?action=open&table=F69A27FD8FB861 42BF01C1166DEA398649&key=77093&sessionId=3 6257467&skin=hudoc-en&attachment=true>.
a verdict which, as Judge Ann Power observed in a dissenting opinion, is
"not just incompatible with current European standards on the question of
conscientious objection but (..) parts company with the Court itself in
terms of the overall direction of the jurisprudence as discernible in the
case law" .
In the Bayatyan verdict, the ECHR claimed that the imprisonment of a
Jehovah’s Witness for refusal on grounds of conscience to perform military
service did not constitute an unlawful interference with his right to
freedom of thought, conscience and religion. In this it "parts company" not
just with the European consensus but also with the global international
standards on this issue, and, unless it is swiftly overturned by the Grand
Chamber, sets a most unfortunate precedent.
In coming to its conclusion, the Chamber on the Bayatyan case chose to be
guided, not by Article 9 of the European Convention on Human Rights and
Fundamental Freedoms ("freedom of thought, conscience and religion"), but
by the wording of a sub-paragraph of Article 4, which deals with forced
labour. Overlooking clear evidence that the Armenian appeal court had
increased Bayatyan’s sentence precisely because of his conscientious
objection and religious convictions, the Chamber read this wording out of
context in order to address the issue of whether a state might choose not
to acknowledge the right of conscientious objection to military service –
even though the case arose only after Armenia had conceded such recognition
in its accession commitments to the Council of Europe. In its decision, the
Chamber felt itself bound by early admissibility decisions of the former
Commission, despite a clear lead from the Grand Chamber of the Court that
these deserved reconsideration. Worst of all, it deliberated in apparent
ignorance of the fact that any possible relevance of forced labour
provisions had now been definitively laid to rest in the jurisprudence on
the International Covenant on Civil and Political Rights (ICCPR).
Article 4.3 of the European Convention states "For the purpose of this
article the term ‘forced or compulsory labour’ shall not include (..) b)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[…]." The purpose of this stipulation is clear: to ensure
that arrangements excusing conscientious objectors from obligatory military
service on condition that they perform alternative non-military service,
are not outlawed as forced labour. In 1950, when the European Convention
was drafted, the concept of conscientious objection was not as widely known
as it is today, hence the words "in countries where they are recognised".
The spurious argument that the almost identical Article 8.3(c)( ii) of the
ICCPR – read in complete isolation even from the rest of the sentence – was
primarily intended to make freedom of conscience contingent on national
military recruitment legislation was dismissed by the Human Rights
Committee in a decision under the ICCPR on the linked cases of Mr. Yeo-Bum
Yoon and Mr. Myung-Jin Choi v. Republic of Korea
(CCPR/C/88/D/1321-1322/2004 of 23 January 2007). In its "View" on these
cases the Committee stated categorically that: "Article 8 of the Covenant
[the ICCPR] itself neither recognises 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". Article 18 of the ICCPR is, it should be
noted, almost identical in wording to Article 9 of the European Convention.
The Committee went on to conclude that conscientious objection to military
service is "a protected form of manifestation of religious belief under
article 18, paragraph 1." This means that "the conviction and sentence [of
conscientious objectors] amounts to a restriction on their ability to
manifest their religion or belief". Also, that even where "under the laws
of the State party there is no procedure for recognition of conscientious
objections against military service", not only must the State demonstrate
that "in the [individual] case the restriction in question is necessary,
within the meaning of article 18, paragraph 3, of the Covenant." but "such
restriction must not impair the very essence of the right in question".
However the Chamber did not note this source in the "relevant
international documents" it identified in making the Bayatan decision.
These were only:
1. an opinion from 2000 by the Council of Europe Parliamentary Assembly
(PACE) on Armenia’s application for membership;
2. a PACE resolution from 2001 on conscientious objection; and
3. Article 10 of the Charter of Fundamental Rights of the European Union
(EU)
The third of these is completely irrelevant to Armenia, which is neither
an EU member nor a candidate country. Armenia is however a member of the
United Nations, has ratified the ICCPR, and is a participating State in the
Organisation for Security and Co-operation in Europe (OSCE). The list
should therefore at a minimum have included (as well as Recommendation
R(87)8, of the Committee of Ministers of the Council of Europe which
encouraged all members to recognise the right of conscientious objection to
military service): the UN Human Rights Committee’s General Comment 22 on
Article 18 of the ICCPR, dealing with freedom of thought, conscience or
religion, and their above-mentioned "View" in the Korean cases; Resolution
1998/77 of the UN Commission on Human Rights; the relevant politically
binding human dimension commitments of the OSCE; and various Opinions of
the UN Working Group on Arbitrary Detention – especially Opinions 8/2008
and 16/2008, concerning conscientious objectors in Colombia and Turkey.
These Opinions, building on the decision in the Korean case, find that any
imprisonment of a conscientious objector could constitute arbitrary
detention because it resulted from the exercise of the freedom of thought,
conscience and religion.
The Bayatyan case is the first in which the direct applicability of
Article 9 to conscientious objection has been considered by the ECHR
itself. In the 2000 case of Thlimmenos v. Greece (Application no.
34369/97), the Grand Chamber of the ECHR found a breach of Article 14
(discrimination) in conjunction with Article 9, because a convicted
conscientious objector had not been distinguished from a common criminal.
It however noted that the question arose of "whether, notwithstanding the
wording of Article 4.3 (b), the imposition of (..) sanctions on
conscientious objectors to compulsory military service may in itself
infringe the right to freedom of thought, conscience and religion
guaranteed by Article 9.1". This implied that the jurisprudence of the
Commission, all of which is much earlier, deserved to be reviewed. However,
the Chamber sitting on the Bayatyan case seemed to consider that Thlimmenos
and the 2006 decision in Ülke v. Turkey (Application no. 39437/98), where
repeated pressure on a conscientious objector to perform military service
was found to constitute inhuman and degrading treatment, somehow confirmed
the earlier jurisprudence. This was not so; in neither case did the freedom
of conscience question need to be addressed in order to find a violation of
the European Covenant.
Significantly, both cases were decided before the issue had been directly
addressed in the Korean case under the ICCPR. Significantly, too, Judge
Elisabet Fura, (who had also sat on the Chamber which decided Ülke)
indicated in a less than enthusiastic concurring opinion that she would
have preferred in the Bayatyan case " to relinquish and allow the Grand
Chamber to re-examine the issue /revisit the case-law/ and maybe to take a
step further and to state that to sentence someone who refuses to do
military service on grounds of conscience would be in violation of Article
9."
A very disturbing feature of the case is that Bayatyan’s sentence had been
increased by the Armenian Criminal and Military Court of Appeal on an
appeal by the Prosecutor. He based this appeal on the grounds that
Byayatyan "did not accept his guilt, explaining that he refused [military]
service having studied the Bible, and as one of Jehovah’s Witnesses his
faith did not permit him to serve in the armed forces". The Armenian Appeal
Court had agreed that as he not only did "not accept his guilt, nor did he
repent of having committed the crime (and) taking into account the nature,
motives and degree of social danger of the crime, (..) a harsher and
adequate punishment must be imposed."
In an admissibility decision of December 2006, which was even more
shocking than the final outcome, the European Court had noted that an offer
had been made to Bayatyan during this appeal hearing that all charges would
be dropped if he abandoned his conscientious objection and agreed to
perform military service, but found his claim that this was an attempt to
coerce him to change his beliefs to be "manifestly ill-founded"
< //tkp197/viewhbkm.asp?action=open&table=F69A27 FD8FB86142BF01C1166DEA398649&key=55801&ses sionId=37560251&skin=hudoc-en&attachment=t rue>.
The effect of the deal offered is comparable to the repeated trials of
conscientious objectors in Turkey and Israel. The UN Working Group on
Arbitrary Detention found this in Opinions 36/1999 and 24/2003 to "be
tantamount to compelling someone to change his/her mind for fear of being
deprived of liberty".
The fact that the prosecution was for Bayatyan’s motivation would appear
to be in direct conflict with the freedom of thought and conscience and
religion. General Comment 22 states that this "is far-reaching and
profound; it encompasses freedom of thought on all matters, personal
conviction and the commitment to religion or belief" and "protects
theistic, non-theistic and atheistic beliefs, as well as the right not to
profess any religion or belief."
Since a 1987 recommendation of the Council of Europe’s Committee of
Ministers, recognition of conscientious objection to military service has
been Council of Europe policy, implemented by all the founder members with
the glaring exception of Turkey. After 1989, such a commitment became a
routine part of the accession criteria for new members, although Armenia
and its neighbour Azerbaijan have been notable for their dilatoriness in
fulfilling this commitment.
Armenia undertook to introduce legislation by January 2004. The Council of
Europe is however still not satisfied that the resultant Law on Alternative
Service offers a genuinely civilian alternative to military service.
Conscientious objectors are supervised by the Military Police under
regulations laid down by the Defence Ministry, ordered to wear uniform
provided by the military, and fed by the military. All breaches of orders
or regulations are dealt with by the Military Prosecutor’s Office.
Meanwhile the number of Jehovah’s Witnesses imprisoned (on sentences of
between 24 and 36 months) for their conscientious objection has steadily
increased – 71 at the last count. This is by far the largest number of
conscientious objectors to military service imprisoned in any country which
nominally recognises the right, and the sentences too are among the longest
imposed on conscientious objectors anywhere (see also F18News 11 December
2008 < 1228>).
Azerbaijan has repeatedly assured the Council of Europe that it is
drafting legislation to implement the civilian alternative to military
service specified in its constitution, but this has still failed to
appeared; meanwhile it intermittently imprisons conscientious objectors.
Samir Huseynov, a Jehovah’s Witness, was freed in May 2008 after serving
seven months of a ten month sentence (see F18News 14 May 2008
< e_id=1129>. More recently,
Mushfiq Mammedov, also a Jehovah’s Witness, was fined in October 2009 after
refusing military service.
Recognition of the right of conscientious objection to military service is
now the global norm. There are countries with obligatory military service
where no conscientious objectors have come forward. But in very few
countries are conscientious objectors subject to imprisonment because there
is no legislation to enable them to be recognised. These are: Azerbaijan as
noted above, Belarus (see eg. F18News 11 November 2009
< e_id=1374>), Colombia (before an
October 2009 decision of the Constitutional Court), Eritrea, Israel, South
Korea, Singapore, Turkey (see eg. F18News 10 July 2007
< e_id=990>) and Turkmenistan (see
eg. F18News 1 July 2008
< e_id=1166>). There is also the
breakaway entity of Nagorno-Karabakh,(see eg. F18News 5 January 2009
< e_id=1236>).
Europe having once led the way towards international recognition of the
right of conscientious objection to military service, its regional
jurisprudence is now dangerously out of step with the current
interpretation of the ICCPR, (to which all Council of Europe members are
party) as well as with the attempts of the Council of Europe itself at the
political level to spread respect for the freedom of religion and belief to
its new members. It is therefore vital that the Grand Chamber of the ECHR
agrees to hear the appeal which Bayatyan’s legal representatives have
announced they will lodge; it alone can overturn the unfortunate precedent
which this will otherwise set for future ECHR cases. (END)
– Derek Brett, Conscience and Peace Tax International <;
Representative to the UN in Geneva, contributed this comment to Forum 18
News Service. Commentaries are personal views and do not necessarily
represent the views of F18News or Forum 18.
PDF and printer-friendly views of this article can be accessed from
< e_id=1377>. It may freely be
reproduced, redistributed or quoted from, with due acknowledgement to Forum
18 <;.
A compilation of Organisation for Security and Co-operation in Europe
(OSCE) freedom of religion or belief commitments can be found at
< id=1351>.
(END)
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