The Council of Europe has dealt with the right to conscientious objection for almost 40 years. The Parliamentary Assembly adopted its first resolution supporting the right to conscientious objection in 1967 and it has addressed the issue regularly since then. In 1987, the Committee of Ministers issued Recommendation R(87)8, which invites governments of member states to bring their national legislation and practice in line with the following principle: "Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out in the Recommendation. Such persons may be liable to perform alternative service". The Recommendation set out minimum standards on conscientious objection, such as the right to be registered as a conscientious objector at any time, the right for all conscripts to receive information about conscientious objection, the need for a fair, non-discriminatory application procedure, and the need for a genuine civilian alternative service which is not punitive by its nature or duration.

In May 2001, the Parliamentary Assembly recalled these minimum standards by adopting Recommendation 1518/2001, in which member states were again invited to bring their legislation and practice in line with the basic principles laid down in Recommendation R(87)8. Although the right to conscientious objection is legally recognized in most European countries, legislation and practice often do not comply with the minimum standards set out in Recommendations R(87)8 and 1518/2001. This was, in fact, also concluded by a report issued by the Council of Europe Committee on Legal Affairs and Human Rights in 2001.(2)

Over the past decades, the European Parliament has also adopted a series of resolutions stating that the right to conscientious objection should be incorporated as a fundamental right in the legal systems of Member States. In 2000, the right to conscientious objection was included in the Charter of Fundamental Rights of the European Union. According to Article 10.2: "The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right".
The representatives of the Organisation for Security and Cooperation in Europe (OSCE) at the Second Conference on the Human Dimension in 1990, agreed on the importance of introducing civilian non-punitive alternative service for conscientious objectors.

Within the United Nations, the right to conscientious objection has been addressed at various levels. In Resolution 1987/46, the United Nations Commission on Human Rights has explicitly recognized the right to conscientious objection as "a legitimate exercise of the freedom of thought, conscience and religion". This resolution has been reaffirmed in subsequent resolutions adopted by the Commission. In 1998, the Commission adopted Resolution 1998/77, in which minimum basic principles concerning the right to conscientious objection are set out, which are similar to the minimum standards that have been detailed by the Council of Europe. The Commission has most recently reaffirmed these minimum standards by adopting Resolution 2002/45. The Commission also called upon the High Commissioner for Human Rights to publish a report on 'best practices'. This report was eventually published in 2004.(3)

Apart from the Commission on Human Rights, the United Nations Human Rights Committee also regularly addresses the right to conscientious objection. The Committee regularly addresses the issue in its final recommendations of States parties’ reports submitted under Article 40 of the International Covenant on Civil and Political Rights (ICCPR) and calls upon states to bring their legislation and practice on conscientious objection in line with international standards.

Some observers therefore claim that the recent trend of abolishing conscription will mean that conscription will soon be history altogether. The changing role of the armed forces following the end of the Cold War would mean that there would no longer be a need for large standing armies manned by mass conscription. This report does not aim to discuss circumstances that may lead to the end of conscription and the arguments given in favour or against conscription. However, it must be stressed that conscription is still enforced in 29 European countries and consequently most European male citizens are still liable to be called up for military service. In many of these countries, there are no indications that conscription will be ended in the near future. Some countries, particularly in the former Soviet Union, consider it too expensive to replace conscripts by professional soldiers. But also governments in other parts of Europe, such as Greece, Turkey, Cyprus and Scandinavia, have shown no intention of ending conscription.

By 'conscription' it is usually understood that all men of a certain age must perform compulsory military service. It is important to stress, however, that conscription is usually applied selectively, meaning that not all eligible men are actually called up for military service. In all European countries, the number of eligible conscripts is in fact larger than the number that is considered needed by the armed forces. Many young men are thus legally exempted from military service, for medical, social or other reasons. In many instances, the selection of conscripts does not necessarily take place by legal means. Particularly in countries of the former Soviet Union, conscription is mostly associated with corruption, young men obtaining false documents to obtain exemption for medical reasons or bribing draft officials to avoid being called up for military service.

There are actually striking differences between different European countries concerning the percentage of eligible conscripts that is actually called up for military service. In some countries the majority of eligible conscripts are recruited, for example in Turkey, Greece, Cyprus and Finland where between 70 and 80 per cent of conscripts are called up. By contrast, in the Baltic States, the Russian Federation and the Ukraine, only 10 to 30 per cent of eligible conscripts actually end up performing military service.

Three European countries have not introduced any legislation on conscientious objection: Azerbaijan, Belarus and Turkey. Turkey, although being a member of the Council of Europe since 1949, has no legal provisions on conscientious objection. In Azerbaijan and Belarus, the right to conscientious objection was included in the constitution during the 1990s, but no further legislation on conscientious objection has ever been introduced, although in Azerbaijan, a draft law on conscientious objection is currently under preparation.(4)

In Georgia, the right to conscientious objection was legally recognized in 1997 when the Law on Alternative Service was adopted. However, the Georgian government has never proceeded with the implementation of the law. Consequently, there are no application procedures through which to claim the right to conscientious objection and there is no substitute service available in practice.
Although the right to conscientious objection is legally recognized in 26 countries, in none of these countries does CO legislation comply with all aspects of the relevant recommendations made by the Council of Europe. Moreover, in several other countries, existing legal provisions on conscientious objection have not been fully implemented, as will be further discussed in the respective paragraphs on application procedures and substitute service.

As shown by the small number of countries appearing in TABLE 1, in most European countries both religious and non-religious grounds for conscientious objection are legally recognized. In fact the recognition of non-religious grounds for conscientious objection has been common practice in many countries for several decades.

Nevertheless, several countries persist in restricting the right to conscientious objection to religious grounds:

In many countries, applications for CO status are individually examined and there may be a personal interview, in which the applicant has to "prove" his motives for conscientious objection. However, as is shown by TABLE 3, 11 countries choose not to conduct an individual examination of the motives of conscientious objectors or to a conduct a personal interview with the applicant. In these countries, CO applications are almost automatically accepted, providing they are submitted within the time limits (if applicable). Although the Council of Europe has never addressed the desirability of an individual examination of CO applications, it is interesting to note that the United Nations Commission on Human Rights has in fact welcomed "the fact that some States accept claims of conscientious objection as valid without inquiry" (Resolution 1998/77).

It is questionable to what extent a fair application procedure and independent, impartial decision-making can be guaranteed if the Ministry of Defence is responsible for the application procedure. After all, the military authorities are primarily responsible for attracting sufficient recruits for the armed forces, so it appears questionable as to whether the Ministry of Defence can be responsible for the application procedure for CO applications.

As shown by TABLE 3, in 10 countries the responsibility for the application procedure does not lie with the Ministry of Defence, but with civilian ministries. Consequently, the military authorities have no significant role in the examination of CO applications. In the remaining 16 countries, the Ministry of Defence is responsible for the application procedure. It is interesting to note that in all countries for which there are concerns about discriminatory treatment of non-religious COs, the Ministry of Defence is responsible for the application procedure.

TABLE 3 also shows that the number of COs varies greatly between countries, from less than 10 annually in the Baltic States to over 150,000 in Germany. In some countries, the number of COs has been relatively stable for years, for example in the Scandinavian countries and Austria. In other countries, particularly Bosnia, Macedonia and Serbia & Montenegro, the number of COs has increased significantly in recent years.

This report does not aim to explain the factors that determine the number of COs in a particular country. Obviously though, the number of COs is connected with the availability of information about the application procedure. If the authorities do not inform conscripts about the application procedure for conscientious objection, and if there are no other peace or human rights organizations that campaign on the issue, it is logical that very few CO applications are made.

In this respect, another element of Recommendation 1518/2001 should be considered, in which states are called upon to ensure "the right for all conscripts to receive information on conscientious objection and the means of obtaining it". The means by which the authorities inform conscripts about conscientious objection has not been structurally discussed in all countries in this report. However, in several countries, such as Bulgaria and Greece, the authorities have been criticized for not informing conscripts about the application procedures for conscientious objection.

It appears most logical that a substitute service that is neither deterrent nor punitive in character is of the same duration as military service. However, as shown by TABLE 4, in almost all European countries substitute service lasts longer than military service. In only three European countries do substitute service and military service have the same duration (Denmark, Germany and Sweden).(6)

Recommendations and resolutions that have been made over the years suggest that, within the Council of Europe, the duration of substitute service is considered to be punitive if it lasts more than one and a half times the length of military service. In addition, the United Nations Human Rights Committee, in its consideration of state reports submitted under the International Covenant on Civil and Political Rights (ICCPR), usually considers a substitute service lasting more than one and a half times the length of military service to be a violation of Articles 18 and 26 of the Covenant. In addition, the European Committee of Social Rights has commented on several occasions that a substitute service lasting longer than one and a half times the length of military service is a violation of Article 1.2 of the European Social Charter as it amounts to a disproportionate violation of the "the right of the worker to earn his living in an occupation freely entered upon", as substitute service keeps COs away from the labour market for an amount of time which is disproportionately longer than conscripts in the armed forces.(7)

Nevertheless, as shown by TABLE 4, in 9 countries the duration of substitute service is more than one and a half times the length of military service:

As shown by TABLE 4, in 18 countries substitute service consists of civilian service outside the armed forces. In these countries, substitute service is mostly performed in health and social sector institutions. This has been actual practice in several countries for several decades. In some countries, substitute service may also be performed with non-governmental non-profit organizations and in Germany and Austria, the performance of voluntary work abroad may count as substitute service.

As shown by TABLE 4, in 14 countries the Ministry of Defence is responsible for the organization and administration of substitute service. This may be considered as in contradiction with respective Council of Europe recommendations, as substitute service can hardly be considered as civilian when it is organized by the Ministry of Defence and is consequently connected with the military authorities.

TABLE 4 also indicates that in several countries it remains unclear if a substitute service is available in practice. In some countries where the number of CO applications remains low, it is equally unclear if substitute service is organized in practice. In addition there are some countries where legislation provides for substitute service, but it has clearly not been organized:

For a better understanding of the right to conscientious objection for professional soldiers, it should be acknowledged that legislation on conscientious objection is usually drawn up within the context of conscription. Consequently, CO laws usually apply to conscripts only and provide no legal basis for the right to conscientious objection for professional soldiers. In addition, certain provisions in CO laws may practically exclude professional soldiers from claiming the right to conscientious objection, such as time limits which do not allow CO applications made by serving conscripts and the exclusion of CO status for those who have a gun licence or have borne arms in the past.
Obviously, the right to conscientious objection for professional soldiers is not explicitly recognized in most European countries. There are only two European countries that have application procedures for professional soldiers who seek discharge from the armed forces because of conscientious objection: Germany and the United Kingdom (although in the latter country the application procedure is not widely known about and is the subject of secrecy). If accepted as conscientious objectors, professional soldiers may be granted honourable discharge from the armed forces.

For other countries, it remains unknown how far the right to conscientious objection for professional soldiers is recognized and no further information on application procedures could be found. There are various factors as to why it is difficult to obtain information on this. Professional soldiers may have limitations on their right to free speech or may be limited in their right to form unions. Further research on the right to conscientious objection for professional soldiers seems needed.