Religion – Weltanschauung – Recht [ RWR ]

In today’s Chamber judgment in the case of Dyagilev v. Russia (application no. 49972/16) the European Court of Human Rights held, by four votes to three, that there had been no violation of Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The case concerned the procedure in Russia for examining requests to replace compulsory military service with its civilian alternative.

The applicant in the case, a recent graduate, complained that the authorities had refused his request because they found that he was not a genuine pacifist. The Court could see no reason to doubt the authorities’ assessment of the seriousness of the applicant’s convictions. Indeed, he had not provided sufficient evidence, only submitting a curriculum vitae and a letter of recommendation from his employer, to prove that his opposition to serving in the army was motivated by a serious and insurmountable conflict with his convictions. Overall, the Court found that the framework in Russia for deciding on cases concerning opposition to military service, involving a military commission and the possibility for judicial review, was appropriate. The military commissions satisfied the prima facie requirement of independence, while the courts had wide powers to then review a case if there were any procedural defects at the commission level.

Principal facts

The applicant, Maksim Andreyevich Dyagilev, is a Russian national who was born in 1990 and lives in St Petersburg (Russia).

When Mr Dyagilev graduated from university in 2014, he became liable to be called up for military service and applied to the local military commissariat requesting to be assigned to civilian service instead.

However, a military recruitment commission dismissed his application, finding that the information he had submitted, namely his curriculum vitae and a letter of recommendation from his employer, did not persuade them that he was a genuine pacifist.

He challenged the dismissal in the national courts, submitting his CV and the letter of recommendation again. The courts examined his application in 2015, but found that Mr Dyagilev had failed to prove that there was a serious and insurmountable conflict between the obligation to serve in the army and his convictions.

The cassation courts fully endorsed that reasoning.

Complaints, procedure and composition of the Court

Relying on Article 9 (freedom of thought, conscience and religion), Mr Dyagilev complained about the dismissal of his request to be assigned to civilian instead of military service. He alleged in particular that military recruitment commissions in Russia were not independent from the military authorities.

The application was lodged with the European Court of Human Rights on 12 August 2016.

A non-governmental organisation, The Movement of Conscientious Objectors, was given leave to intervene as a third party in the proceedings.

Judgment was given by a Chamber of seven judges, composed as follows:

Paul Lemmens (Belgium), President,

Georgios A. Serghides (Cyprus),
Paulo Pinto de Albuquerque (Portugal),
Helen Keller (Switzerland),
Dmitry Dedov (Russia),
Alena Poláčková (Slovakia),
Lorraine Schembri Orland (Malta),

and also Stephen Phillips, Section Registrar.

Decision of the Court

The Court reiterated that opposition to military service, when motivated by a serious and insurmountable conflict with a person’s conscience or deeply and genuinely held religious or other beliefs, attracted the guarantees of Article 9 of the Convention. States were however allowed to establish procedures to assess the seriousness of an individual’s beliefs so as to prevent the possibility of exemption being abused. Such procedures had to be effective and accessible.

The Court found that the Russian authorities had established an effective and accessible procedure for determining whether an individual was entitled to conscientious objector status. The mechanism in place provided wide scope for an examination of individual circumstances and encompassed sufficient guarantees for a fair procedure as required by international standards and the European Court’s case law.

In particular, the majority of a recruitment commission’s seven members were officials from public bodies, who were structurally independent from the military authorities. The other three members were from the Ministry of Defence. That composition therefore satisfied the prima facie requirement of independence. Nothing suggested either that the members obtained any payments or incentives from the military authorities, they were employed by their own State agencies and did not receive any instructions from the Ministry of Defence.

Furthermore, any procedural defects at the commission level could be remedied during the judicial proceedings, given the courts’ wide powers to review a case.

As concerned the specific circumstances of the applicant’s case, the Court noted that the military commission deciding on his request had consisted of seven members, four of whom, including the president, had been structurally independent from the Ministry of Defence. It was therefore satisfied that the composition of the commission had provided the applicant with the requisite guarantees of independence.

Moreover, the domestic courts had examined the applicant’s request anew, giving him the opportunity to provide evidence of his beliefs, such as witness testimony. However, he had not used that possibility, and simply submitted his CV and the letter of recommendation again. Neither party had argued that the proceedings had been unfair; nor did the Court see any reason to doubt the domestic authorities’ assessment of the seriousness of the applicant’s convictions.

The Court therefore accepted that the applicant had failed to substantiate a serious and insurmountable conflict between the obligation to serve in the army and his convictions.

There had accordingly been no violation of Article 9.

Separate opinions

Judge Serghides expressed a concurring opinion, while Judges Pinto de Albuquerque, Keller and Schembri Orland each expressed a dissenting opinion. These opinions are annexed to the judgment.

Press release ECHR 090 (2020) 10.03.2020