3 June 1998
Human rights of conscripts
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group
Conscripts, like all soldiers, must be regarded as citizens in uniform and, consequently, should enjoy the same rights and fundamental freedoms - in particular those conferred by the European Convention on Human Rights - and enjoy the same legal protection, as ordinary citizens. If states provide for restrictions on the exercise of these freedoms, these restrictions must be justified by the specific circumstances or by the need to maintain military discipline, but the Convention must always be strictly respected.
Thus the procedures before military courts, where they exist, must fully conform with articles 5 and 6 of the Convention. There must be adequate channels for lodging complaints, proceedings must be fair and the courts impartial and independent.
In addition, conscripts should not be deployed for tasks which are not compatible with the fact that they have been drafted for national defence. Free speech and the right to freedom of assembly and association may only be restricted in so far as these restrictions are strictly justified by the needs of military service.
Member states should establish civilian supervision over the situation of conscripts and encourage the setting-up of conscripts' organisations for the promotion of their rights. They should do whatever they can to stop the ill-treatment and bullying of conscripts such as exist in the system of "dedovshchina" in Russia. The right to conscientious objection should be respected in accordance with texts previously adopted by the Assembly and the Committee of Ministers.
I. Draft resolution
1. In most Council of Europe member states, defence is based on national military service and the obligation for people to serve their country for a period limited by law. These conscripts, like all soldiers, must be regarded as citizens in uniform. 1
2. As a result, these conscripts should enjoy the same rights and fundamental freedoms, in particular those conferred by the European Convention on Human Rights, and enjoy the same legal protection as ordinary citizens. This does not preclude the possibility that states provide for restrictions on the exercise of these freedoms, if these are justified according to the specific circumstances or to maintain military discipline. But they must be in strict respect of the Convention.
3. A hearing on the rights of conscripts, organised by the Committee on Legal Affairs and Human Rights in Helsinki on 4 July 1996, clearly showed that there are considerable differences between member states regarding the legal status of conscripts and the rights they enjoy. It revealed that in several countries the application of certain articles of the Convention is restricted in an unjustifiable manner and that conscripts do not enjoy their fundamental rights in the same way as ordinary citizens.
4. The Assembly considers that many of these restrictions on the exercise by conscripts of their civil rights are unacceptable. It therefore recommends member states to make changes in their legislation or practice if it is apparent that these cannot reasonably be regarded as being in conformity with the restrictions that the European Convention on Human Rights and the binding interpretation of the Convention by the European Court of Human Rights allow for.
5. The Assembly invites member states to promote the application of civil and social rights which conscripts should enjoy, certainly in peacetime and as far as possible also in time of war, and, if necessary, to amend their legislation to this end. It specifically invites them:
i. to ensure that the procedures before military courts, where these exist, fully conform with Articles 5 and 6 of the European Convention on Human Rights, and in particular to see that there are adequate channels for lodging complaints, that proceedings are fair, that the court is impartial and independent and that any arrest and detention of conscripts is lawful;
ii. to guarantee that conscripts are not deployed for tasks not compatible with the fact that they have been drafted for national defence service, and are therefore not deployed for forced or compulsory labour in contravention of Article 4 of the European Convention on Human Rights;
iii. to prohibit restrictions on the rights of conscripts to free speech and to free assembly and association according to Articles 10 and 11 of the European Convention on Human Rights, as far as those restrictions are not strictly justified by the needs of military service;
iv. to prevent torture, ill-treatment, bullying and other practices that could be considered as inhuman or degrading treatment or punishment, according to Article 3 of the European Convention on Human Rights.
6. It invites member states to establish civilian supervision over the situation of conscripts. In particular, it recommends the institution of a body or service specialised in military matters and endowed with powers of investigation and information.
7. The Assembly encourages states to favour the creation of conscripts' associations responsible for promoting the fundamental rights of conscripts, providing legal and judicial aid for them and defending their rights, and representing their interests before the authorities.
8. The Assembly notes that there are unfortunately situations and practices within the armed forces of certain member states which contravene the European Convention on Human Rights, especially as to fair trial, forced labour, free speech, free association, and the ill-treatment of recruits and conscripts, such as occurs in the system of "dedovshchina" in Russia. It urgently requests the states concerned to take the necessary measures to change these situations and practices without delay.
9. The right to conscientious objection should be respected in accordance with Assembly Resolution 337 (1967) and Recommendation R (87) 8 of the Committee of Ministers.
II. Draft recommendation
1. The Assembly refers to its Resolution ... (1998) on the human rights of conscripts, in which it invites member states to allow conscripts to enjoy civil and social rights and to grant them a status of "citizen in uniform", in strict respect of the European Convention on Human Rights.
2. The Assembly particularly recommends that the Committee of Ministers formulate strict guidelines for the member states on the way the following articles of the European Convention on Human Rights and of the case-law of the Court should be applied in the specific case of conscripts:
a) Article 3 (freedom from inhuman or degrading treatment);
b) Article 4 (freedom from forced or compulsory labour);
c) Articles 5 and 6 (proceedings for complaints; lawful arrest and detention; fair trial by independent and impartial courts);
d) Articles 10 and 11 (freedom of speech, of assembly and of association).
II. Explanatory memorandum by Mr Jurgens
1. Despite the recent tendency in several European countries to abolish conscription and opt for a purely professional army, defence in the majority of Council of Europe member countries continues to be based on national military service and the obligation for young people to serve their country for a fixed period. These soldiers are thus conscripts, not professionals who have signed on voluntarily, and will be returning to civilian life on completion of their period of service.
2. Because these young people are "citizens in uniform", they should be able to enjoy the same rights and fundamental freedoms and the same legal protection as ordinary citizens, in particular as regards human rights.
3. On 1 September 1992, Mr Rehn and a number of his colleagues tabled a motion for a resolution (Doc. 6654) calling upon the Parliamentary Assembly to take urgent action in favour of conscripts, and in particular to permit them to enjoy certain fundamental rights, such as the right to life and respect for physical and moral integrity, the right of peaceful assembly and association, freedom of expression, and a certain number of social rights, such as the right to enjoy the same working conditions in peacetime as the rest of the working population.
4. The Parliamentary Assembly has concerned itself in the past with matters concerning the military, adopting several texts relating to the right of conscientious objection to military service, in 1967, 1977 and 1987, and also Resolution 903 (1988) on the right of association of professional members of the armed forces2. However, these texts are limited in scope and make reference to certain rights only. It may be useful to emphasise here that practically all of the rights listed in this report apply mutatis mutandis to professional soldiers, ie those who have voluntarily engaged in the armed forces.
5. When looking at the situation of conscripts the right to conscientious objection is certainly of considerable importance. It will not, however, be dealt with in this report. Firstly because it is more a matter of freedom of conscience and religion than of the rights of conscripts. Secondly, because there is a special report on this subject under preparation. The Committee on Legal Affairs and Human Rights did in fact submit a report to the Assembly in 1993 (Doc 6752, Rapporteur: Mr Rodotŕ) which, however, was referred back to Committee. The new Rapporteur (Mr Gross, Switzerland, SOC) intends to lay a new report before the Committee in the course of 1998.
6. The aim of this report is to determine whether, and to what extent, the rights guaranteed by the European Convention on Human Rights are applicable to conscripts, and on the basis of this to determine any limitations. In other words, it is important to determine on the one hand whether the European Convention on Human Rights applies to the situation of military service, and hence confers rights on conscripts, and on the other whether it should apply in its entirety or whether in some cases restrictions on the application of the Convention are justified by the specific circumstances. Lastly, we need to consider the validity of any restrictions which may be placed on the enjoyment by conscripts of their fundamental rights, as recognised by the Convention, and determine whether the reasons given for imposing such restrictions are admissible.
7. The remarks in this report on the factual situation of conscripts within member states is based to a large extent on information given at the hearing on the rights of conscripts organised by the Committee on Legal Affairs and Human Rights in Helsinki on 4 July 19963, in which six experts from different European countries took part, and on certain reports submitted to us by NGOs such as Amnesty International and the European Council of Conscripts Organisations (ECCO), as well as comments of the Oficina del Defensor del Soldado (office of the soldiers' ombudmsan)4. However, this report reflects only a partial view of the situation of conscripts in Europe, and does not claim to present an exhaustive list of all infringements of conscripts' rights in member states.
8. This hearing made it very clear that there are considerable differences between member states regarding the legal status of conscripts and the rights they enjoy, among both the old and new member states of the Council of Europe. This disparity is all the greater as regards the extent to which conscripts are accorded the status of "civilians" or "citizens in uniform", which permits them to enjoy the rights conferred by the European Convention on Human Rights, in conformity with the case law of the Court of Human Rights in Strasbourg. In the opinion of participants in the hearing, conscripts should be accorded the same rights as civilians, without there being a need to abandon military discipline.
B. APPLICABILITY OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS TO CONSCRIPTS
9. Several articles of the European Convention on Human Rights may apply to the rights of conscripts:
- Article 3 on inhuman or degrading treatment;
- Article 4.2 and 4.3b on forced labour;
- Article 5.1, 5.3 and 5.4 on the right to liberty and security of person (lawful arrest and detention, right to be brought before a judge, and entitlement to trial within a reasonable time);
- Article 6.1 and 6.3c on the right to a fair and public trial;
- Article 8.2 on the right to respect for private and family life, and correspondence;
- Article 9 on freedom of thought, conscience and religion;
- Article 10 on freedom of expression and information;
- Article 11 on freedom of assembly and association;
- Article 3 of Protocol 1 on free political expression and the right to free elections by secret ballot;
- Article 2 of Protocol 4 on liberty of movement.
10. For the sake of clarity, a distinction is made between the provisions of the Convention concerned with public freedoms (Articles 8, 9, 10 and 11 in particular), and the procedural guarantees stipulated by the Convention which might apply to military courts (Articles 5 and 6).
11. While the European Court of Human Rights has been all too seldom called upon to settle disputes involving conscripts, its case law is on the other hand very clear as to the applicability of certain provisions of the Convention 5. In these cases, the Court has ruled that the Convention fully applies to conscripts. At the same time however, the Court has admitted the existence of restrictions to the exercise of their rights by conscripts. There may thus be exceptions to the full capacity to enjoy fundamental rights in the case of conscription or voluntary enlistment in the armed forces.
12. The Court has defined the outline of the rights whose exercise guaranteed to conscripts, while at the same time defining a certain number of possible restrictions to the exercise of these same freedoms, in the strict respect of the Convention. This of course does not give states a general authorisation to restrict the human rights enjoyed by conscripts. On the contrary, it is incumbent upon national authorities to prove that during the period of military service there are special circumstances which may justify the imposition of restrictions at certain times on the application of certain human rights. The restrictions placed upon human rights during military service should therefore be interpreted in the context of the specific restrictions authorised by the Convention.
13. Furthermore, it should be pointed out that certain countries have made reservations to the Convention, in order to provide for exceptions to its application to conscripts. Thus France, the Czech Republic and Spain formulated reservations to the applicability of Articles 5 and 6 of the Convention, as did Portugal on Article 5, in order to maintain the disciplinary regime existing in the armed forces, and in particular punishments which deprive conscripts of their liberty.
i. Article 3: infliction of severe ill-treatment
14. Article 3 prohibits serious forms of ill-treatment. The sometimes severe modes of training of military personnel do not as such constitute ill-treatment within the terms of Article 3. However, such training does not form a justification for forms of vicious harassment of recruits and of conscripts.
15. The Court has had numerous occasions to decide on the treatment of detainees within the context of Article 3. The situation of conscripts is analogous to that of detainees, but of course only in as much as conscripts are obliged to conform to a regime that has been legally imposed on them. Neither detainees nor conscripts, however, loose their rights under the Convention, and even military discipline is within the context of Article 3 no justification for severe ill-treatment.
ii. Article 4.3b: is military service forced or compulsory labour?
16. Article 4.3b on forced or compulsory labour stipulates that "the term "forced or compulsory labour" shall not include ... any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service" 6.
17. The Convention does not consider military service undertaken voluntarily to be forced labour. This was the Commission's decision (Application nos 3.435 to 3.438/67) in the case of four British youths who were obliged to continue the military service they had commenced as volunteers, with the consent of their parents.
18. The question whether non-military tasks carried out during military service by conscripts, in particular for private purposes, constitute forced labour, has not yet been decided by the Court. An interpretation of Article 4 that would exclude deployment of conscripts, other than on a voluntary basis, for non-military purposes except in a situation of national emergency such as a natural disaster (e.g. flooding) would, however, underline the fact that those who have been conscripted have the right not to accept that they are deployed for other purposes than that of national defence, especially as this could be constituted as forced labour.
iii. Procedural guarantees: Articles 5 (right to liberty and security) and 6.1 (right to a fair hearing before military courts)
- Article 5
19. This concerns the guarantees accorded to persons deprived of their liberty, and in particular the right to be brought promptly before a judge. However, the question of whether the deprivation of liberty suffered by an individual is contrary to Article 5 is decided by the Court on a case-by case basis, taking account of the particular circumstances.
20. In the case Engel and others v. Netherlands of 8 June 1976, where conscripts had had various disciplinary punishments imposed on them, the Court found that confining soldiers to barracks (placing under light arrest) does not run afoul of Article 5, for such restrictions are "not beyond the exigencies of normal military service", whereas the same type of restrictions placed on civilians would be unacceptable. A punishment or disciplinary measure which would be considered a deprivation of liberty for a civilian may not be of this nature if inflicted on a serviceman.
21. A punishment does not escape Article 5 however if it results in restrictions which depart significantly from the normal conditions of life in the armed forces. The Court therefore considered as a deprivation of liberty the strict arrest and committal of conscripts to a disciplinary unit. Thus in a case concerning the detention on remand of conscripts accused of military criminal offences 7, the Court found violation of Articles 5.3 and 5.4, considering that a delay of 8 to 14 days' imprisonment was too long before the court-martial examined the detention decision, and exceeded the limits laid down by Article 5.3, even taking into account the exigencies of military life and justice.
22. In the decision in the case of Koster v. Netherlands of 28 November 1991, where a conscript had been placed in detention on remand during military manoeuvres before his appearance before a court-martial, the Court again found violation of Article 5.3.
23. Similarly, the proceedings before the courts must be impartial and respect Article 5.3 of the Convention. Thus Belgium 8 and the Netherlands 9 were found at fault by the Court because the same "auditeur militaire" was the investigating authority and the prosecutor in the same case. The institution of the "auditeur militaire", who is the investigating authority and may become the prosecutor in the same case does not provide the necessary guarantees of independence.
- Article 6
24. The Court's case law clearly establishes the extent to which the guarantees of Article 6 (which apply only to criminal and civil procedures) apply to military disciplinary proceedings. The Court decided that it was not enough for the state to qualify an offence as a disciplinary matter to escape the obligation to grant a fair trial. The Court in fact found in Engel and others v. Netherlands, cited above, in which Dutch conscripts claimed that various aspects of a disciplinary hearing conducted by the military authorities violated their right to a fair hearing, that the requirements of Article 6 should apply, because the criteria of the nature of the offence and the severity of the potential penalty (prison sentences of several months' duration) entailed the criminal - and not disciplinary - qualification of the charge.
iv. Public freedoms: Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression and of information) and 11 (freedom of association)
- Article 9 10
25. The obligation to do military service is not in itself contrary to Article 9 of the Convention, which upholds freedom of thought, conscience and religion. According to the Commission's case law (Applications 7.705/76, 7.548/76 and 7.565/76), this article should be read in the light of Article 4.3b. The Commission refused to consider that Article 9 guaranteed an absolute right to conscientious objection. In states where there is an alternative civilian service, the obligation to do such service is compatible with the Convention 11.
26. In a case of 1978, Arrowsmith v. United Kingdom, dealing with the distribution of leaflets to soldiers, discouraging them from accepting postings to Northern Ireland and encouraging them to become conscientious objectors, the Commission accepted that pacifism falls within the ambit of Article 9, but found that the distribution of leaflets did not constitute a manifestation of pacifist belief.
- Article 10
27. The leading case Engel and others v. Netherlands, cited above, permitted the Court to examine the rights of conscripts as regards freedom of expression, two of the applicants having been punished for publishing articles in the conscripts' magazine. The Court acknowledged the applicability of Article 10 to servicemen, but without concluding that it had been violated in this case, because in this case it upheld the Government's prohibition of servicemen's publication and distribution of a paper criticising certain senior officers.12
28. In Arrowsmith v. United Kingdom, 1978, the Commission found that while Article 10 was applicable to the distribution of leaflets to soldiers, the state's interference was legitimate in the interests of national security and the prevention of disorder within the army.
29. There is however reason to hope for a more positive evolution of the case law of the European Court of Human Rights in this respect. The fact is that a breach was opened in a recent case concerning the right to distribute a magazine in the Austrian armed forces. In a decision of 19 December 1994, Vereinigung Demokratischer Soldaten Österreichs und Gubi v. Austria, the Court found violation of Article 10. The case concerned prohibition of the distribution within a barracks of a publication of a soldiers' association ("Der Igel"), critical of the Austrian army. In this case the Court found that "Freedom of expression applies to servicemen just as it does to other persons within the jurisdiction of the contracting states".
- Article 11
30. In the Engel case cited above, the Court acknowledged the applicability of this Article to conscripts, but found that there was no violation of Article 11 or any breach of the freedom of association.
C. THE SITUATION REGARDING THE HUMAN RIGHTS OF CONSCRIPTS IN EUROPE
31. Military service is not an ordinary kind of activity: it obviously implies, during the period of conscription, participation in military exercises involving risks (handling firearms, forced marches, driving vehicles and equipment, etc.). The danger inherent in these activities explains why there are frequent accidents which might occasion physical or mental harm to conscripts, and in death in certain tragic cases. This report is not aimed at calling into question in any way the existence of conscription in Europe, nor at criticising countries which have civilian service. A country needs effective fighting forces, duly trained for this purpose and prepared for combat.
32. Beyond this basic postulate however, it is necessary to ensure that conscripts enjoy the respect of their fundamental rights, as they appear in the Convention of 1950 and its protocols. In this respect there are in fact considerable differences between member states as to the legal status of conscripts. Finland and Germany, for example, are models as regards the recognition of the fundamental rights of conscripts, and provide better guarantees of the respect of human rights than many other countries. This report therefore sets out to examine the present situation of conscripts with respect to the exercise of their fundamental rights and the different regimes applicable to them in member states - though with no claim to be exhaustive - with respect to the relevant articles of the Convention. Concrete examples illustrating present practice in various member states where conscripts are placed in situations which do not respect their rights show that action on the part of the Assembly is fully justified.
i. The existence of serious violations of human rights during military service
33. The Committee on Legal Affairs and Human Rights has received concordant information according to which conscripts in certain countries have been subjected to inhuman or degrading treatment, and even physical or mental torture, in breach of Article 3 of the European Convention on Human Rights. Certain treatment suffered by conscripts in Europe is downright inadmissible. Russia is an extreme case in this respect 13 14.
34. According to Amnesty International, in particular in a report of April 1997 15, and to the "Soldiers' Mothers of St-Petersburg" (SMO) association, created in 1991 to help soldiers and their families, Russian conscripts are the victims of many abuses: enlistment of young men suffering from serious diseases, infirmities or handicaps, sudden call-up. Infinitely more serious are cases of humiliation; beating up, rape and torture inflicted on conscripts 16. During its six years of existence, the SMO association has thus recorded some 4,000 cases of conscripts who have testified as having been victims of deprivation, ill-treatment or torture. These cases are connected with the existence of the "dedovshchina" system, a kind of sadistic bullying of recruits, the "rookies", by the more senior soldiers, practised with the consent or even the active participation of officers. There is a high suicide rate among conscripts. In the first half of 1995, 3,000 conscripts deserted because of the threats weighing on them. Lastly, many young conscripts die of hunger and deprivation or due to the lack of medical care, especially in the eastern regions of the country. According to estimates by the SMO association, at least 5,000 young men die each year in the course of their military service, due to deprivation and ill-treatment, not to mention the conditions in barracks (hygiene conditions, inadequate medical care, food deficiencies, etc.).
35. For its part, the Russian Ministry of Defense recorded, in 1994, 423 suicides of soldiers and 2,500 deaths resulting from "criminal incidents", and for 1995, 392 deaths (other than in combat), of which one-third suicides. In its defense it points out that the problem is partly due to the existence among the recruits of a certain number of former street children and offenders (5.2 % of the recruits have a criminal record).
36. Amnesty International also deplores the lack of willingness on the part of the authorities to expedite impartial investigations and prosecute the authors of such acts. According to the families of the victims, although there are some 160 military courts in Russia, employing 700 military judges, it is virtually impossible to obtain any investigation. Lastly, no compensation for victims or their families is provided for.
37. The Russian authorities should therefore take urgent steps to put an immediate end to the sadistic practices and bullying of conscripts which are prevalent in the armed forces 17.
38. Although Russia is an extreme case, the Black Book on Rights of Conscripts in Central and Eastern Europe, published by ECCO, also quotes cases in Belarus, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania and Slovakia 18. However, the situation of conscripts can be said to have considerably improved over recent years in most member states, but certain European countries are doing little to better the situation of their conscripts.
39. As was pointed out at the hearing in 1996 by the representative of the Spanish NGO Oficina del Defensor del soldado (Ombudsman for Soldiers), in his country too there are problems. In its recent written statement19 the Oficina has declared that the scale of the abuses has fallen drastically since 1996.
ii. The existence of restrictions on the applicability of human rights to conscripts
40. There are certain practices in the armed forces of a number of countries which, as is shown below, are contrary to the European Convention on Human Rights. The hearing revealed that in several countries the application of certain articles of the Convention has been restricted in an unjustifiable way. The European Council of Conscripts Organisations (ECCO), for its part, has drawn up a non-limitative list of examples showing that in some member states conscripts do not enjoy their fundamental rights in the same way as ordinary citizens. This difference in treatment cannot be entirely explained by the special situation of conscripts and servicemen in general.
41. Thus conscripts may not enjoy the right of assembly and freedom of association (Article 11 ECHR), freedom of expression (refusal to permit the distribution of a magazine - Article 10 ECHR) of the right to vote (or else they suffer undue pressure when they exercise this right). Furthermore, their freedom of movement may be restricted, in contravention of Article 2 of Protocol 4 to the ECHR (obligation to remain in the barracks outside service hours; prohibition on leaving the country, etc.), as may respect of their private life. They may even be forced to attend religious services.
42. In principle, servicemen should only have to perform military tasks. But this is not always the case, as there are many examples showing that they are employed on non-military ancillary activities or tasks: farm work, public works, private services, etc. The notion of forced labour appearing in Article 4 of the ECHR should be interpreted in this sense. In Spain, according to the Oficina del Defensor del Soldado, in 1996 the use of soldiers for non-military and private tasks was widespread (waiters in cafes, personal drivers, gardeners, barmen, waiters or cooks for private receptions, etc.). The Oficina stated in 1998 (AS/Jur (1998) 26) that this has been unlawful since 1995, but that "a certain amount of discretion is applied in defining what constitutes a military task". In Germany, even though in theory conscripts can be used only for military functions (with the exception of their mobilisation in emergency situations and in the case of natural catastrophes, on the decision of the Minister of Defense), in practice they are sometimes used for civilian and private purposes. In Bulgaria there are many abuses and conscripts are used for heavy civilian work (in factories, on farms, in building and public works, etc.).
43. The right to respect of private life, home and correspondence (Article 8 ECHR) should be guaranteed without reserve. In Germany, for example, service is based on the idea of posting conscripts close to their homes, in conformity with the principle of respect of private life.
44. Limitation of the freedom of expression of conscripts is intolerable and unjustified (Article 10 ECHR). We are in a society where this right is so widely accepted and upheld that it cannot be denied.
45. Freedom of association is expressly refused to their conscripts by the legislation of certain member states (Spain, Portugal), in contravention of Article 11 of the ECHR. Conscripts should have the right to form associations to defend their interests and also the right to engage in political activity, so that young people are not politically demotivated or totally cut off from civilian life. It is necessary here to take the more liberal legislation of the Scandinavian countries, Germany and the Netherlands as a model.
46. One of the major questions of this report is that of knowing the conditions in which a certain restriction of human rights for conscripts might be considered justifiable within the limits of the Convention, in other words whether the Convention permits restrictions justified by the special nature of the conscript's status, and if this is so, how far domestic law can go in this direction. It is obviously necessary that there be an objective reason, compatible with the Convention, for limiting the human rights in question. There might thus be reason to ask whether the restrictions authorised by the Convention ("public order" for example) have not been formulated too broadly, and whether they should not either be interpreted more narrowly or reformulated.
47. It is of course necessary to make a distinction between the conscript in peacetime and in wartime. It is obvious that in wartime more restrictions on the exercise of certain rights may be justified.
iii. The existence of specific cases of restrictions on the rights of conscripts
48. It is also necessary to address a specific question, that of the discrimination to which national minorities are subject in some countries during their military service, in particular regarding the right to use their own language. In Bulgaria, for example, conscripts from minorities are considered second class citizens and suffer discrimination: they cannot become air force pilots, serve in the navy or be promoted to senior officer rank; they cannot use their mother tongue, even among themselves, and there are no special units. By contrast, Finland has special guarantees. The Swedish minority in Finland is grouped in a special army unit in Helsinki, which works in Swedish and has the same rights as Finnish units. On the other hand, joining naval or air force units poses a problem, because for obvious practical reasons Finnish is required.
iv. Equity and impartiality of military justice
49. In some countries it is the ordinary courts which are responsible for dealing with disciplinary cases involving conscripts, but in most countries a military court or a mixed court has jurisdiction for this type of case, one obeying legal rules which differ from those of ordinary criminal law. The applicability of Articles 5 and 6 of the European Convention on Human Rights to military justice is thus a vital question here. It concerns both the existence of adequate channels for lodging complaints, the equity of the proceedings, the impartiality and independence of the court, and also the lawfulness of any arrest and detention of the conscript.
50. In this field, the ECCO association has recorded very many violations of Articles 5 and 6 of the European Convention on Human Rights. A number of proposals can thus be formulated.
51. In the first place, the conscript must be guaranteed the possibility of appealing against any measure or punishment decided by a superior, before an impartial and independent court.
52. In this connection it is frequently the composition of the military court that gives rise to problems (Article 6 ECHR), because of the lack of both impartiality and independence, to the extent that the judges are officers. It is necessary to ensure objectively that a court is fairly impartial, i.e. have as a minimum parity between civilians and officers and a method of designation which provides the necessary guarantees.
53. The jurisdiction of military courts, often far too wide and extending to all criminal offences and even to purely civil offences, should be restricted to military offences of a disciplinary nature only.
54. It is then necessary to ensure the equity of the proceedings: the immediate superior or military commander must not exercise the function of judge in a disciplinary case. Military courts must be separated from the military chain of command.
55. Similarly, the party prosecuting or investigating a case cannot be judge at the same time; it is therefore necessary to separate the investigation functions from the prosecution function. The ideal is therefore a system where complaints can be lodged and investigated outside the military context.
56. Lastly, the conscript must also be able to enjoy the assistance of a defense lawyer of his own choice in a disciplinary case. This possibility is available in France, Denmark, the Netherlands and Spain for example, but is officially prohibited in Bulgaria.
57. Violation of the stipulations of Article 5 of the Convention concerning lawful arrest and detention (Habeas Corpus) is also frequent. Regarding punishment, only a civilian court should be competent to inflict a punishment depriving a person of his liberty; military commanders should certainly not be able to sentence somebody to deprivation of freedom. Detention on remand without specific charges and without being brought to trial within a reasonable time should no longer be permitted. Is it possible for a military court to judge impartially all the disputes brought before it, especially where deprivation of liberty is involved? Is a court martial a sufficiently independent and impartial court to assess the lawfulness of the detention?
58. At the hearing in 1996, the representative of the Oficina del Defensor del soldado in Spain told of the lack of fairness and impartiality of Spanish military justice. Complaints are often doomed to failure because of the pressure brought to bear on the proceedings by the military administration and the lack of evidence and testimony against officers. The sentences handed down to conscripts may be disproportionate (for example, three years in a military prison for "insulting the Spanish flag" i.e. for utterances by a conscript in a state of inebriation, although actually he had been released after serving six months). In its statement of 1998 (AS/Jur (1998) 26), the Oficina has declared that significant changes have been made, but that the discrepancy "between the typical values of military organisation and the meaning of justice itself (has as a consequence) that there remain certain areas where no progress has been made".
59. Germany provides an example of the fair functioning of the courts. Military tribunals are made up of a civilian judge and two military alternates, one of whom must be of higher rank and the other of the same rank as the accused. Civilian judges sit on military tribunals for disciplinary as well as other proceedings. Lastly, lawyers are appointed to defend conscripts.
60. In Finland there are at least three types of procedure open to conscripts. Most offences are treated as civil cases, and thus the civil courts are empowered to hear them. Other offences which might entail disciplinary punishment are the only ones dealt with under military procedure before a military tribunal. The military tribunals are made up of two officers and a civilian judge. Since 1987, there has been the possibility of appealing against the judgement. Lastly, recourse to the parliamentary Ombudsman is possible in all cases concerning violations of rights.
61. In most European countries military justice has a bad press. It has a very controversial image and is considered reactionary: the outcome of a court martial appears to be fixed in advance. Furthermore, there is all too often inequality of treatment between officers and other ranks, especially regarding punishments of a disciplinary nature. However, ordinary criminal courts clearly do not have appropriate jurisdiction in all aspects of military discipline. Special tribunals, with limited jurisdiction, may be necessary for disciplinary proceedings. However, both the composition of these tribunals and the procedures must provide the necessary guarantees of equity and of impartiality.
62. The hearing held in Helsinki clearly showed that some of the restrictions and limits which exist in certain countries on the exercise of their civil rights by conscripts are contrary to the European Convention on Human Rights. Most of these restrictions are downright inadmissible. However, while most speakers felt that conscripts should be considered to be civilians in uniform and be accorded equal treatment, even though it is admittedly difficult to preserve the balance between the rights of civilians in uniform and the exigencies of military life, others thought that it was not entirely true that a conscript was simply a civilian in uniform, or desirable that he should be regarded as such, because of the specific obligations of his situation. However, if we accept the postulate that conscripts are "civilians in uniform", then they should be able to enjoy the same rights as civilians, without there being a need to abandon military discipline. Member states should base themselves here on the national legislation of the most progressive countries in Europe.
63. In view of the conclusions of this hearing, the Committee recommends member states to amend their legislation and or practice should it become apparent that these cannot reasonably be regarded as being in conformity with the basic tenet of the Convention which makes human rights in principle fully applicable to conscripts. The cases observed can but underline the need to acknowledge the civil and social rights of conscripts.
64. A recommendation to member states to amend their legislation or practice as to the rights of conscripts would be of a too general nature to secure compliance with the text and the intent of the European Convention on Human Rights. Many countries have the erroneous conviction that their laws and practice are compatible because the Convention allows for a great latitude in applying it to the situation of conscripts within a military organisation. This conviction is erroneous, because the exceptions to the rights conferred by the Convention should – according to the case-law of the Court – be very strictly interpreted.
65. The Committee therefore proposes that the Committee of Ministers draw up strict guidelines as to the application of those civil and social rights of conscripts which clearly, as is seen from the practice in member states, are being violated in many instances with an appeal to exceptions to the rights of conscripts which are based solely on the fact of their conscription into the armed forces.
66. Quite clearly there is no reason, for instance, why conscripts would not be allowed to create associations for the promotion of their interests. Indeed, the existence of such "trade unions", and their acceptance by the authorities, are perhaps the best way of assuring the rights of conscripts. It is also not clear why conscripts should lose their rights of speech and assembly, especially when these are necessary to promote their interests, and if these rights are exercised in their leisure hours. A second category is that of the right to a fair and impartial trial. In a hierarchical command system, like the army, being judged by a superior officer, or by military tribunal, cannot be regarded as fair and impartial. There is, as a third category, that of freedom from ill-treatment and bullying. The situation within a military organisation creates instances in which such ill-treatment occurs, without any relevance to military exigencies whatsoever. And, fourthly, there is the matter of compulsory labour. Conscripts, although they have been drafted for military service, are in many instances used by the authorities for totally different activities, against their will and outside of a situation of national emergency, such as flooding.
67. It would be possible to draft a Code of the Rights of Conscripts, which deals with all the human rights of such "citizens in uniform", as the motion for a resolution tabled by Mr Rehn and others on 1 September 1992 (Doc 6654) has suggested. The Committee has studied this possibility, but has decided that such a broad perspective could well draw attention away from the rights of conscripts which are endangered, and the recognition and strict application of which could much ameliorate the situation of conscripts in many member states.
68. Consequently the Committee has decided to recommend that the Committee of Ministers concentrate on drawing up strict guidelines for a correct application to conscripts of the following rights defined in the European Convention:
a) Article 3 (freedom from inhuman or degrading treatment);
b) Article 4 (freedom from forced or compulsory labour);
c) Articles 5 and 6 (proceedings for complaints; l awful arrest and detention; fair trial by independent and impartial tribunals);
d) Articles 10 and 11 (freedom of speech, of assembly and of association).
69. The Committee consequently advises the Assembly to recommend that strict guidelines are drawn up by the Council of Europe as to the question whether, and if so in how far, the fact of conscription into the armed forces constitutes an exception, according to the Convention and its case-law, to the above-mentioned rights accorded to citizens, including those in uniform.
- the establishment of civilian supervision
70. The hearing also revealed the need for civilian supervision of the situation and activities of conscripts, and highlighted in this respect the vital role of the ombudsman, in those countries where one had been instituted, such as Finland, Sweden and Germany. Only Germany has a mediator specialised in military affairs: in the Scandinavian countries there is an ombudsman with general powers.
71. The example of Germany is particularly interesting, to the extent that powers are attributed to a specific institution. The Wehrbeauftragte, a parliamentary commissioner for the armed forces, is an institution of the Bundestag responsible for the parliamentary supervision of the armed forces, and in particular of the respect of the fundamental rights of conscripts. The Commissioner is elected for five years by the Bundestag and submits an annual activity report to it. The Office of the Commissioner intervenes directly whenever there is the slightest violation of human rights, and has very broad investigative powers and access to information (it can inspect any military unit without authorisation or prior notice). Conscripts and regular servicemen can approach it directly without having to go through their superiors. The existence of a military mediator offers many advantages: considerable resources for action, rapidity and effectiveness of intervention. Moreover, as a Parliamentary Commissioner he or she can bring pressure to bear directly and propose any necessary amendment to existing legislation.
- the creation of conscripts' organisations responsible for promoting the fundamental rights of conscripts
72. Conscripts should have the right and the facilities to set up associations for the defence of their rights and interests.
73. It is thus necessary today for the Council of Europe to undertake to actively promote the respect of the fundamental rights of conscripts. The situation in certain member states sometimes indicates blatant violations of the Convention which cannot leave us indifferent.
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Doc 6654, Reference No 1898 of 1 October 1993
Draft resolution adopted with one abstention and draft recommendation adopted unanimously by the committee on 24 April 1998
Members of the committee: MM Hagĺrd (Chairperson), MM Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Dees (alternate: Jurgens), Demetriou, Mrs Dumont, MM Enright, Fogaš, Forni (alternate: Bordas), Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia (alternate: Kieres), Jeambrun, Kelam, Lord Kirkhill, MM Kostytsky, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco (alternate: Sceberras Trigona), Martins, Marty, McNamara, Mészáros, Micheloyiannis, Moeller, Mozetic, Nastase, Németh, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Rippinger Robles Fraga (alternate: Lopez Henares), Rodeghiero, Simonsen, Solé Tura (alternate: Mrs Calleja), MM Staciokas, Lord Steel (alternate: Mr Gill), MM Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge
1 National military service (conscription) exists in most Council of Europe member states. It has been abolished or never existed in Belgium, Iceland, Ireland, Luxembourg, the Netherlands and the United Kingdom, among others. France and Spain will end conscription in 2002 and 2003 respectively.
2 Some of these texts are appended.
3 The minutes of the hearing (document AS/Jur (1996) 51) are available on request from the Secretariat of the Committee on Legal Affairs and Human Rights.
4 AS/Jur (1998) 26, available on request from the secretariat of the Committee on Legal Affairs and Human Rights.
5 . However, many of the cases settled by the Court are connected with conscientious objection, which could tend to narrow the approach to the rights of conscripts and significantly limit the contribution of the Court's case law to any more comprehensive reflection on these rights. Furthermore, it should be pointed out that a number of rights and freedoms upheld by the Convention have not yet given rise to any case law.
6 . It should be pointed out that in the terms of the Convention conscientious objection is not a right. It is on this basis that the European Commission of Human Rights has found several cases inadmissible, considering that Article 4.3 does not oblige any contracting state to introduce alternative civilian service or to recognise conscientious objection or to exempt conscientious objectors from serving in alternative employment for equivalent periods of time.
7 . Decisions in: De Jong, Baljet and van den Brink v. Netherlands; van der Sluijs, Zuiderveld and Klappe v. Netherlands; Duinhof and Duijf v. Netherlands of 22 May 1984.
8 . Decision in Pauwels v. Belgium of 26 May 1988.
9 . In the three decisions of 22 May 1984 in: De Jong, Baljet and van den Brink v. Netherlands; van der Sluijs, Zuiderveld and Klappe v. Netherlands; Duinhof and Duijf v. Netherlands.
10 . The right to conscientious objection is not dealt with in this report. Attention should nevertheless be drawn to Recommendation 478 (1967), Resolution 337 (1967) and Recommendation 816 (1977) adopted by the Parliamentary Assembly, and Recommendation R (87) 8 adopted by Committee of Ministers of the Council of Europe, all concerned with the right to conscientious objection to compulsory military service. The wording of Article 9 may also be compared with that of Article 18 of the United Nations International Covenant on Civil and Political rights. (See also Resolutions 1989/59 and 1993/84 of the United Nations Commission on Human Rights, recognising conscientious objection).
11 . It should be pointed out that in the terms of the recommendations and the resolution adopted by the Assembly, the right to conscientious objection, even though it is not upheld by Article 9 of the ECHR, should be more widely recognised and permit any conscript to declare himself a conscientious objector to military service.
12 The Court first noted that "the order that must prevail within the confines of a specific social group (...) in the case of the armed forces, disorder in that group can have repercussions on order in society as a whole". (...) "The proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline, for example by writings (...)
[The Court] must not disregard either the particular characteristics of military life (...), the specific "duties" and "responsibilities" incumbent on members of the armed forces, or the margin of appreciation that Article 10.2 (...) leaves to the Contracting states.
There was thus no question of depriving them of their freedom of expression, but only of punishing the abusive exercise of that freedom on their part".
13 . See Resolution B3-0062/94 adopted by the European Parliament on 20 January 1994 on the situation of soldiers in Russia, which already highlighted the existence of flagrant violations of human rights (bullying of recruits, call-up of sick and unfit young men, etc.).
14 See also the report by Mr Ole Espersen, Commissioner of the Council of Baltic Sea States (CBBS) on Democratic Institutions and Human Rights,including the rights of persons belonging to minorities on "Some aspects of the rules and regulations related to the rights and duties of the personnel of the armed forces of the CBSS member states, Copenhagen, November 1996.
15 . EUR 46/10/97 "Russian Federation: Torture, ill-treatment and death in the army"; see also EUR 46/05/97 "Russian Federation: the right to conscientious objection to military service", and EUR 46/04/97 "Torture in Russia: this man-made Hell".
16 . We may cite the case of Sergei Bannikov, who was doing his service in the Russian navy in July 1996 and was taken to hospital in a coma after having been tortured for several days by his "comrades" and certain superiors, and barely survived a hanging attempt.
17 . On 19 June 1997, the state Duma adopted a law on the status of servicemen. Two bills, one on conscription and military service and the other on alternative civilian service are said to be nearing completion.
18 . Black Book, European Council of Conscripts Organisations, Utrecht, the Netherlands, 29 June 1996.
19 AS/Jur (1998) 26, available on request from the secretariat of the Committee on Legal Affairs and Human Rights.