Dissenting opinion of Judge Gyulumyan in the case of Bayatyan v. Armenia, No. 23459/03, ECtHR (Grand Chamber), 7 July 2011

Art. 9 ECHR and conscientious objection to military service in Armenia. Absence of alternative civilian service and breach of Art. 9 ECHR.    

Art. 9 ECHR 
Art. 4 ECHR 

1. Conscientious objection is not expressly provided for in the Convention. The role of the ECtHR is to protect those human rights already existing in the Convention, not to create new rights. 

2. Although the evolutive approach to the Convention (living instrument) allows the Court to broaden the rights protected by the Convention, this should not be permitted when the Convention itself leaves the recognition of particular rights to the discretion of the member States of the Council of Europe. 

This Grand Chamber judgment is a key-case overruling the previous case-law of the Commission, according to which conscientious objection to military service fell outside the application of Art. 9 ECHR and within the scope of Art. 4 ECHR. See in this Observatory Grandrath v. Germany, dec., No. 2299/64, ECommHR (Plenary), 12 December 1966 and the related cases.