CCPR/C/125/D/2316/2013
the absence of a reply from the State party, due weight must be given to the author’s
allegations, to the extent that they are substantiated. 8
Issues and proceedings before the Committee
Considerations of admissibility
5.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
5.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
5.3
The Committee notes the author’s claim that he has exhausted “all reasonable
domestic remedies” available to him. In the absence of any objection by the State party in
that connection, the Committee considers that the requirements of article 5 (2) (b) of the
Optional Protocol have been met.
5.4
As to the alleged violations of article 7 of the Covenant, the Committee notes that
the author has not provided any information on having been personally ill-treated or
personally subjected to substandard prison conditions. The Committee considers that, even
if the State party has not refuted the author’s allegations, on the basis of the limited
information on file, the author has insufficiently substantiated his claim under article 7 of
the Covenant for the purposes of admissibility. Accordingly, the Committee declares the
claim inadmissible under article 2 of the Optional Protocol.
5.5
The Committee considers that the author has sufficiently substantiated his claim
under article 18 (1) of the Covenant for the purposes of admissibility. In the absence of any
other challenge to the admissibility of the communication, the Committee declares the
communication admissible insofar as it concerns the author’s claims under article 18 (1) of
the Covenant and proceeds with its consideration of the merits.
Consideration of the merits
6.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
6.2
The Committee notes the author’s claim that his rights under article 18 (1) of the
Covenant have been violated owing to the absence in the State party of an alternative to
compulsory military service, as a result of which his refusal to perform military service
because of his religious beliefs led to his criminal prosecution and subsequent
imprisonment.
6.3
The Committee recalls its general comment No. 22 (1993) on the right to freedom of
thought, conscience and religion, in which it considers that the fundamental character of the
freedoms enshrined in article 18 (1) is reflected in the fact that this provision cannot be
derogated from, even in time of public emergency, as stated in article 4 (2) of the Covenant.
The Committee recalls its prior jurisprudence stating that, although the Covenant does not
explicitly refer to a right of conscientious objection, such a right derives from article 18,
inasmuch as the obligation to be involved in the use of lethal force may seriously conflict
with the freedom of thought, conscience and religion. 9 The right to conscientious objection
to military service inheres in the right to freedom of thought, conscience and religion. It
8
9
4
See, inter alia, Abushaala v. Libya (CCPR/C/107/D/1913/2009), para. 6.1; Aboussedra v. Libya
(CCPR/C/100/D/1751/2008), para. 4; Shikhmuradov v. Turkmenistan (CCPR/C/112/D/2069/2011),
para. 4; and Amarasinghe v. Sri Lanka (CCPR/C/120/D/2209/2012), para. 4.
See Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea (CCPR/C/88/D/1321-1322/2004), para.
8.3; Jong-nam Kim et al. v. Republic of Korea (CCPR/C/106/D/1786/2008), para. 7.3; Atasoy and
Sarkut v. Turkey, paras. 10.4–10.5; Young-kwan Kim et al. v. Republic of Korea
(CCPR/C/112/D/2179/2012), para. 7.4; Abdullayev v. Turkmenistan (CCPR/C/113/D/2218/2012),
para. 7.7; Mahmud Hudaybergenov v. Turkmenistan (CCPR/C/115/D/2221/2012), para. 7.5; Ahmet
Hudaybergenov v. Turkmenistan (CCPR/C/115/D/2222/2012), para. 7.5; Japparow v. Turkmenistan
(CCPR/C/115/D/2223/2012), para. 7.6; Nurjanov v. Turkmenistan (CCPR/C/117/D/2225/2012 and
CCPR/C/117/D/2225/2012/Corr.1), para. 9.3; and Uchetov v. Turkmenistan
(CCPR/C/117/D/2226/2012), para. 7.6.