Russian Federation

 

  Conscription:

Yes

 

  Conscientious objection:

1993

First recognised in Constitution, Art. 59.3.

Service

 

Military:

12

 

Civilian:

18

 

Minimum

 

Conscription:

18

 

Voluntary enlistment:

16

Under 18 for military schools: 16 for Military School

More 

https://ebco-beoc.org/russia

In the case of Dyagilev v. Russia (application no. 49972/16) [1] on 10/03/2020 the Chamber of the European Court of Human Rights (ECtHR) (Third Section) held, by majority of four (4) to three (3), that there had been no violation of Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights.

On 07/09/2020 the Grand Chamber panel of the European Court of Human Rights rejected the request to refer the case of Dyagilev v. Russia (no. 49972/16) to the Grand Chamber, thus rendering the judgement of 10/03/2020 final. [2]

Maksim Andreyevich Dyagilev, is a Russian national who was born in 1990 and lives in St Petersburg (Russia). The case concerned the procedure in Russia for examining requests to replace compulsory military service with its civilian alternative.

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 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.

Relying on Article 9 (freedom of thought, conscience and religion) of the European Convention, 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.

Unfortunately the Chamber of the ECtHR could see no reason to doubt the authorities’ assessment of the seriousness of the applicant’s 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.

In this judgement, a small majority of judges found that the military recruitment commission “satisfies the prima facie requirement of independence” despite the fact that three out of seven of its members are representatives of the Ministry of Defence. In this ECtHR judgement a slim majority disregards allother relevant international and regional human rights standards set by numerous UN and European institutions for more than half a century.

First of all, in this case the majority of ECtHR judges appear to ignore that “no court and no committee can examine a person’s conscience”, and that “in order to be recognized as a conscientious objector, a declaration setting out the individual's motives should suffice in order to obtain the status of conscientious objector”, as European Parliament’s resolutions have repeatedly stated for over 30 years. [3]

Furthermore, the ECtHR disregards the fact that both the UN Human Rights Council,[4] and its predecessor, the then UN Commission on Human Rights,[5] have, since 1998, welcomed the fact that some States accept claims of conscientious objection as valid without inquiry. In this case, not only was Dyagilev’s claim not accepted without inquiry, but, as pointed out in the dissenting opinion of 3 judges, the “assessment was based on an overly burdensome standard of proof”.

In this judgement the ECtHR appears to ignore the international and regional human rights standards concerning any applications for conscientious objector status.

In 1967 the Parliamentary Assembly of the Council of Europe, decided that: “Where the decision regarding the recognition of the right of conscientious objection is taken in the first instance by an administrative authority, the decision-taking body shall be entirely separate from the military authorities and its composition shall guarantee maximumindependence and impartiality. [6]

Similarly, the then UN Special Rapporteur on religious intolerance, set the relevant standard as long ago as 1986: “The decision concerning their status should be made, when possible, by an impartial tribunal set up for that purpose or by a regular civilian court, with the application of all the legal safeguards provided for in international human rights instruments. There should always be a right to appeal to an independent, civilian judicial body. The decision-making body should be entirely separate from the military authorities and the conscientious objector should be granted a hearing, and be entitled to legal representation and to call relevant witnesses.” [7] The same standards continue to be cited today by the UN Special Rapporteur on freedom of religion or belief as the role is named now. [8]

It is obvious that a military recruitment committee with any representatives of the Ministry of Defence, let alone three (3) out of seven (7) members, is not “entirely” separate from the military authorities. Furthermore, insofar it is the military members and not the civilian ones which raise questions of independence and impartiality, as it appears to be accepted by the ECtHR [see Papavasilakis v. Greece, no.66899/14], a composition which would guarantee “maximum” independence and impartiality should have been one with the minimum [i.e. zero] participation of military members.

Most importantly, in this case the ECtHR does not take into account the recommendations of the UN Human Rights Committee which, in 2009, urged Russia to “consider placing the assessment of applications for conscientious objector status entirely under the control of civilian authorities.” [9]

The OHCHR has also adopted a similar standard noting that: “Independent and impartial decision-making bodies should determine whether a conscientious objection to military service is genuinely held in a specific case. Such bodies should be placed under the full control of civilian authorities.” [10]

It is worth noting that this ECtHR judgement, which appears to accept a minority of military members in the bodies examining applications for CO status, contradicts its own rationale on whether even a single member may affect the independence and impartiality of a body. For example, in the case of Canevi and Others v. Turkey, no. 40395/98, which is not related to conscientious objectors, the ECtHR found a violation of Article 6.1 of the European Convention of Human Rights (right to fair trial), because of the participation of a single military member in a tribunal. If even a single (1) military officer affects the impartiality and independence of a tribunal in a case which has nothing to do with the army it is absolutely clear that the same would be true when the issue at stake is directly related to the army as it involves a conscientious objector opposingthe army and the military service.

In conclusion, this year’s ECtHR judgement in the Dyagilev v. Russia case contradicts longstanding international and regional human rights standards concerning the recognition of COs, as well as its own broader rationale on independence and impartiality. In any case, the ECtHR may be responsible for the European Convention for Human Rights, but its judgement does not preclude the possibility for Dyagilev himself, as well as other conscientious objectors in similar position, to seek justice at a different level, such the UN Human Rights Committee, for violation of a different treaty, the International Covenant on Civil and Politic Rights.

This ECtHR ruling, concerning a single case with specific characteristics, adopted by a majority of just one judge, and not examined by the Grand Chamber does not set a general precedent for Russia and cannot annul the growing jurisprudence on the right to conscientious objection to military service.

According to EBCO’s member organization in Russia "Citizen. Army. Law":

In recent years (2015-2020), the situation with the right to conscientious objection in Russia is alarming. To date, we do not have statistical data on the people whose military service was replaced with alternative civil service (ACS). However, according to our estimates, the number of citizens who have managed to exercise their right to conscientious objection is decreasing.

Believers of Jehovah’s Witnesses increasingly began to face denials of their right to conscientious objection in connection with the decision of the Supreme Court of the Russian Federation of April 20, 2017 No. AKPI17-238 on the liquidation of a religious organization of Jehovah’s Witnesses in Russia and recognition of their activities as extremist. After this decision, believers of Jehovah’s Witnesses are deprived of the opportunity to provide a reference from a religious organization and, on this basis, draft commissions refuse them to replace their military service with ACS, recognizing their applications as unfounded. In other cases, draft commissions refuse to replace military service with ACS, stating that the activities of Jehovah’s Witnesses are prohibited and referring to the above-mentioned decision of the Supreme Court. In one of these cases, we filed a complaint with the ECtHR (application no. 25929/29, Vidyayev v. Russia).

Regarding the ECtHR judgment in the complaint No. 49972/16, Dyagilev v. Russia, it contributes to the deterioration of the situation with the right to conscientious objection in Russia.

The Russian judicial practice related to the cases on challenging the decisions of draft commissions on refusals to replace military service with ACS is also not in favor of conscripts. In some situations, courts consider filing of an application for the replacement of military service with ACS as “abuse of the right” (appeal ruling of the Moscow City Court dated August 16, 2018 in case No. 33a-6015/2018). The decisions of the highest courts (the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation), which would develop standards for ensuring the right to ACS, are absent. The positive court decisions of the district and regional courts related to the protection of the rights to conscientious objection concerned only procedural issues.

Citizens have regularly their applications rejected, with unmotivated and unreasonable refusals to replace military service with ACS, with unjustified referrals for psychiatric examination. For example, a citizen A., who is a Baptist believer, was sent for a psychiatric examination. In justification of the decision to send him for psychiatric examination, the psychiatrist indicated the diagnosis “F22.0 (refusal to take the oath due to religious beliefs)”. According to ICD-10, code F22.0 means the disease “delusional disorder”. The courts recognized the referral for a psychiatric examination instead of considering the application to the ACS as legal (the appeal ruling of the Moscow City Court dated November 22, 2018 in case No. 33a-9698).

At the same time, the command of the Russian Ministry of Defense is taking steps to undermine the very essence of the civilian character of ACS. Human rights activists became aware of the unpublished Instructions on organization of training for citizens undergoing the ACS on the basis of the military spiritual and educational center under the Patriarch Cathedral of the Resurrection of Christ - the main Temple of the Armed Forces of the Russian Federation. Military officials have developed an “algorithm for improving the ACS system in the interests of the Armed Forces.”

In this regard, we consider that there is a real threat of changes in the legislation and practice of organizing ACS in Russia, which will lead to the virtual absence of the right to conscientious objection to military service.

Ukrainian territories occupied by Russia: see the section on Ukraine.

 

[1] JUDGMENT in the CASE OF DYAGILEV v. RUSSIA (Application no. 49972/16), available at http://hudoc.echr.coe.int/eng?i=001-201649

[2] “ECtHR judgement on Russian CO case disregards 53 years of international human rights standards”, Joint statement published on October 29th 2020 by Connection e.V., EBCO – European Bureau for Conscientious Objection, IFOR - International Fellowship Of Reconciliation, WRI - War Resisters’ International, available at https://ebco-beoc.org/node/470

[3] European Parliament, Resolution on conscientious objection and alternative service, (Α3-15/89), [known as Schmidbauer Resolution], as published in the Official Journal of the European Communities C291, 13 October 1989, para. Α (page 123) and para. 4 (page 124). See also: European Parliament, Resolution on conscientious objection, (1-546/82), [known as Macciocchi Resolution], 7 February 1983, as published in the Official Journal of the European Communities C 68, 14 March 1983, para. 3 (page 15).

[4] UN Human Rights Council, Resolution 24/17 (A/HRC/RES/24/17), 8 October 2013, para. 7. Available at http://undocs.org/A/HRC/RES/24/17

[5] UN Commission on Human Rights, Resolution 1998/77, Conscientious objection to military service, 22 April 1998, (E/CN.4/RES/1998/77), para. 2

[6] Council of Europe, Parliamentary Assembly, Resolution 337 (1967), Right of conscientious objection, para. b2.

[7] Report submitted by Mr. Angelo Vidal d Almeida Ribeiro, Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1986/20 of 10 March 1986 (E/CN.4/1992/52), 18 December 1991, para. 185. http://undocs.org/E/CN.4/1992/52

[8] Rapporteur’s Digest on Freedom of Religion or Belief, p. 45. https://www.ohchr.org/Documents/Issues/Religion/RapporteursDigestFreedomReligionBelief.pdf

[9] UN Human Rights Committee, Concluding observations on the sixth periodic report of the Russian Federation, (CCPR/C/RUS/CO/6), 24 November 2009, para. 23. Available at http://undocs.org/CCPR/C/RUS/CO/6

[10] OHCHR, Approaches and challenges with regard to application procedures for obtaining the status of conscientious objector to military service in accordance with human rights standards, 24 May 2019, para. 60, (g). Available at: http://undocs.org/A/HRC/41/23