The Communication received on 5 January 2018, is submitted on behalf of Rashad Niftaliyev, Fitzuli Baghirov, Ruhin Panahov, Sahila Rmazani, Tarlan Ramazanova, Rashad Mammadov and Rogal Alasgarov, citizens of Azerbaijan who are Jehovah’s’ Witnesses.4 The authors claim a violation of their rights under articles 9 (1), 14 (1), (2), (3) (b) (d) (e), 18 (1) and (3), 19 (2) and (3), 26 and 27 of the International Covenant on Civil and Political Rights (the Covenant). The authors are represented by counsels, Mr. Daniel G. Pole and Mr. Peter Muzny.
- Apart of Mr. Rashad Mammadov and Mr. Royal Alasgarove, who was considering becoming one of Jehovah’s Witnesses at the time of the raid. ↩
The facts as submitted by the authors
On 14 November 2015, the authors were meeting together with a larger group of 27 assembled at the invitation of the homeowner, Ruhin Panahov, in the city of Ganja for a religious discussion of the beliefs of Jehovah’s Witnesses. Jehovah’s Witnesses are not registered in Ganja. The police raided the meeting without a warrant and with no justification for their trespass on private property. They searched all present and confiscated personal property. The authors note that they were scared and confused, they were forced into a small minibus without space to stand and taken to the police station where they were detained for a few hours.
Upon arrival at the police station, the authors found reporters from several TV stations with video cameras, which recorded them. The authors had to wait for an hour outside in the cold. They were not allowed to sit down or get anything to eat or drink until they were gathered in a semi-basement at 1 a.m. when the police chief arrived. During the detention, the police called them “infidels”, “traitors” and “terrorists”, and told them to return to Islam. The authors note that they reported this improper police conduct to the domestic courts, which either ignored it or ruled that “these grounds were not confirmed during the Court’s investigation”. 5
- The authors referred to the Decision of Ganja Court of Appeal of 24 December 2015 on the complaint of Mr Baghirov and Decision of Ganja Court of Appeal of 2 March 2016 on the complaint of Mr Niftaliyev. ↩
The authors were ordered to return to the police station the next day, 15 November 2015, at 10 a.m. When they returned, the police transported them directly to the Ganja City Kapaz District Court, which adjourned their hearing.6 The authors all filed motions to have access to the case materials in order to prepare their defence.
- Rashad Niftaliyev was however arrested and, in spite of providing evidence as to why he had not paid a fine previously imposed for the same offence, jailed for 25 days. He thereafter was transported directly to court from jail. ↩
Each author was brought before the same trial judge at the Ganja City Kapaz District Court on various dates in November 2015. Before each trial, the judge’s secretary informed the authors that it was a closed court hearing, and asked friends and legal advisors to leave the courtroom. None of the authors was provided with the case materials before the hearing. Each trial was summarily concluded in 10 minutes. Every author, irrespective of his/her circumstances, was fined the maximum amount provided in the law of AZN 2,000. 7The authors note that this is an exorbitant amount for any citizen of Azerbaijan, with imprisonment for non-payment being the likely result.
- 2,000 manats, approximately equivalent to € 1,094. ↩
The authors appealed to the Ganja Court of Appeal, which heard and dismissed every appeal between December 2015 and March 2016. The Court refused to accept that the authors’ actions constituted “worship”, finding that they represented an illegal religious association and held a religious meeting without permission. Describing their conduct as criminal under Azerbaijan law, all convictions were upheld. The Court ruled that under domestic law, once it has been established that a religious meeting has taken place without permission, conviction follows automatically. The State’s conduct was judged “appropriate and in accordance with the law”. The Court of Appeal relied on the European Court of Human Rights’ decision in Kokkinakis v. Greece8 to justify the restrictions placed on freedom to manifest religion in Azerbaijan. However, the Court did not refer to any evidence that the restrictions were proportionate. The Court’s reasoning was that since freedom of religion may be restricted, any domestic norm, as long as it is “attainable and precise”, is acceptable to limit fundamental rights. The authors note that the decision of the Court is final and cannot be appealed.
- European Court of Human Rights, Kokkinakis v. Greece, application No. 14307/88, judgement of 25 May 1993. ↩
The authors note that the fines were severe. Fizuli Baghirov struggles to provide food and shelter for his family. Niftaliyev lives in fear of his next imprisonment for non-payment. Ruhin Panahov has been punished with 240 hours of community service, Royal Alasgarov has already completed 200 hours of community service while Rashad Mammadov lives in fear that additional punishment may be imposed on him.
The complaint
The authors claim that their rights guaranteed by articles 9 (1) have been violated as all present at the meeting on 14 November 2015, including the elderly, children and those with health conditions, were taken under guard to the police station where they were detained for over 10 hours without food or water. They did not go voluntarily to participate in an investigation. The police provided no evidence why it was necessary to detain anyone at the police station. They claim that their arrest was illegal and that the underlying purpose was not investigatory but to intimidate them from exercising freedom of religion. This was evident from the derogatory speech by the police during detention. The authors note that they claimed before the domestic courts that the police had entered Ruhin Panahov’s home without permission or a warrant. However, the judge ruled that the meeting was illegal, ignoring that the Law of the Republic of Azerbaijan on Freedom of Religious Beliefs does not prohibit meeting together in private homes and that even if it did, the arrests were still arbitrary within the meaning of article 9.
The authors claim that their rights guaranteed by articles 14 (1), (2), (3) (b) (d) (e) were violated as their trials were closed, without legal counsel present, and because they were denied the case materials for their cases. Their trials were therefore neither fair nor public. They argue that the domestic courts’ denial of basic elements of a fair trial rendered their decisions flawed. They note that the Appeal Court could have corrected these irregularities by ordering a new trial or reviewing evidence. However, the Appeal Court sidestepped the issues by reiterating the domestic law and dismissing the authors’ claims about the unfairness of the proceedings as “not confirmed during the Court’s investigation”. The authors argue that the cursory review by the Court of Appeal of their allegations did not remedy the unfairness of the trial and demonstrates that the court was not impartial, in violation of article 14 and the right to an independent judiciary. They further note that they were not provided with the case materials and that by failing to allow them access to all the arguments and evidence of the case against them, the Court put them at a procedural disadvantage to the prosecution, violating the principle of equality of arms. They argue that the trial judge exacerbated the unfairness of the trial by denying them a legal counsel and a public trial. They also argue that the sanctions imposed on them were penal because of their purpose, character or severity and were disproportionate. For complainant Fizuli Baghirov, who supports a family of four, the fine represents almost six months’ total income – the most he has been able to pay is AZN 10 per month, which means it will take 170 months or 14 years to pay the total fine.
The authors claim that their rights guaranteed by articles 18 (1) and (3) have been violated as they were peacefully exercising their freedom of religion by gathering together for a religious service in a private home. They were prevented from continuing by an illegal, warrantless, police raid. The police searched those present, confiscated their religious literature, arrested and detained them at the police station where all, including minor children, were paraded in front of local television media and ridiculed because of their religion. They submit that the investigation was based on the faulty premise that because Jehovah’s Witnesses were not registered locally, the authors violated domestic legislation on religious meetings. The courts accepted this police justification and convicted the authors, in violation of their rights under article 18. Also, the position of the court appears to be that you can worship freely, but only if alone.
The authors claim that their rights guaranteed by articles 19 (2) and (3) have been violated as the actions of the State party interfered with their rights to peacefully share their religion with others. They note that in order to justify an interference with article 19, the State party must provide evidence that meets the strict tests of necessity and proportionality. They claim that the true motive of the police was to harass them.
The authors claim that their rights guaranteed by articles 26 and 27 have been violated as they were discriminated against and prosecuted by the State party for manifesting sincerely held religious beliefs. As vulnerable members of a minority, they turned to the domestic courts for protection. The domestic courts refused to protect them, instead of adding to the State party’s discrimination by imposing excessive fines and refusing to make the police answer for the harassment of the authors.
The authors request the Committee to provide them with an effective remedy giving full recognition of their rights under the Covenant, as required by article 2 (3), by (1) removing all legislative restrictions on the right of the authors to freely associate for religious or other lawful purposes anywhere within the State; (2) reversing all decisions and findings of the domestic courts to harmonise with the conclusions of the Committee and the rights and freedoms guaranteed by the domestic law and Constitution of the State and the Covenant; (3) providing the authors with suitable monetary compensation for the moral, economic, physical and emotional damage suffered; (4) reversing any civil or criminal record, entry or legal disability and any monetary penalty imposed and return with interest any monies paid; (5) providing the authors with suitable monetary compensation for the legal expenses and fees incurred in the domestic courts and the proceedings before the Committee.
State party’s observations on admissibility
By note verbale of 9 March 2018, the State party challenged the admissibility of the communication in relation to articles 26 and 27 of the Covenant. The State party stated that the authors did not sufficiently substantiate these claims to be regarded as victims and thus, their claims are manifestly ill-founded. The communication should therefore be declared inadmissible.
The State party stated that the authors failed to show that they were discriminated against on the basis of their religious origin. Article 299.0.2. of the Code of Administrative Offences of the Republic of Azerbaijan, which makes an administrative offence the religious ceremonies organised and conducted in violation of the relevant rules, is equally applicable to all without any discrimination. All allegations with regard to discrimination are based on vague statements, without any reliable evidence, which could not be proved before the national courts.
In this regard, the State party notes that the authors did not point to other religious groups in a similar situation and/or any difference in treatment of the religious groups by the public authorities. In other words, they failed to demonstrate a difference in the treatment of groups or persons in analogous, or relevantly similar, situations. The requirement to demonstrate an analogous position does not require that the comparator groups be identical and the authors could not show that having regard to the particular nature of their complaint, they were in a relevantly similar situation to others treated differently.
Authors’ comments to the State party’s observations on admissibility
On 4 June 2018, the authors submitted their comments to the State party’s observations. They noted that the State party provided no observations on their claims under articles 9, 14, 18 and 19 and therefore submitted that these claims should be declared admissible.
As concerns the rest of their claims, the authors argued that these have been sufficiently substantiated for purpose of admissibility. They noted that the law referred to by the State party may appear to be neutral, but is in practice discriminatory as the State party has withheld registration for Jehovah’s Witnesses in Ganja city for the past eight years. They argued that the State party discriminates against individuals and among religious groups by treating groups with State registration differently from groups without registration. They argued that the State party is asserting, falsely, that as long as it equally restricts the rights of other religious groups as well, it is not subjecting the authors to discrimination.
The authors also claim that state-sponsored acts of religious intolerance and discrimination directed toward Jehovah’s Witnesses are the subject of numerous separate communications pending before this Committee.9 As a result, the Committee is concerned “about the reported interference in religious activities, and harassment of members of religious groups, including Jehovah’s Witnesses, and the increased in arrests, detention and administrative or criminal sanctions against them”.10
State party’s observations on merits
By note verbale of 9 July 2018, the State party provided general background concerning the situation of freedom of religion in Azerbaijan. The State party submitted that ensuring tolerance and peace between the various religious communities and their representatives in Azerbaijan is the main goal of the Government in promoting intercultural dialogue and religious tolerance.
The State party submits that the authors were not deprived of their liberty or arrested. The authors were not brought to the police station forcibly. They were merely invited to the police station to take their testimonies and compile relevant documents. Soon after their testimonies were recorded, the authors left the police station. The authors were not placed in a cell or subjected to any restrictive measures. As to the duration of stay at the police station, it was caused due to a large number of individuals from whom explanations concerning the commission of an offence under article 299.0.2 of the Code of Administrative Offences of the Republic of Azerbaijan had to be taken.
The State party notes that on the question of whether the detention is lawful the Covenant refers back essentially to national law and lays down an obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of article 9, namely to protect individuals from arbitrariness. In the present case, the authors were invited to the police station on the ground that they had contravened the Law on freedom of religion. They were briefly deprived of their liberty to enable explanations to be taken and released some hours later, without being brought before a court.11 In the light of all these circumstances, there is no evidence to suggest that the deprivation of liberty was arbitrary.12
The State party submits that the allegations concerning the violation of article 14 are unsubstantiated. The authors merely make assertions without producing any concrete evidence of violation. The State party notes that the authors’ complaints have been carefully considered by the domestic courts. It also recalls that it is the responsibility of the appeal courts in State parties, not the Committee, to evaluate that facts and evidence in a specific case unless it can be proved that the evaluation is manifestly arbitrary or amounts to the denial of justice. If a court reaches a reasonable conclusion on a particular matter of fact in the light of the evidence available, the decision cannot be held to be manifestly arbitrary or to amount to a denial of justice.13 Nothing suggests in the present case that the conclusion reached by the domestic courts was unreasonable. Accordingly, the State party maintains that these claims are totally unfounded and that the communication contains no concrete argument whatsoever that might substantiate their assertions and cast doubts on the findings of the domestic authorities.
- See, Smaster v. Belgium, (CCPR/C/94/D/1178/2003), Khuseynov and Butaev v Tajikistan, (CCPR/C/94/D/1263-1264/2004 ), etc. ↩
As to the claims of lack of impartiality, the state party acknowledges that the requirement of impartiality of a tribunal in the sense of article 14 is an absolute right that is not subject to any exception.14 The State party maintains that the authors did not present any proof either to this Committee, or to the appeal court concerning the impartiality of a trial judge. This was, in fact, acknowledged by the Court of Appeal, which held that the relevant Court investigation had been conducted with regard to the claims that the authors were subjected to pressure and insult by police officers and neither of these allegations had been confirmed.
- CCPR, Gonzales del Rio v. Peru, N 263/1987. ↩
In the light of the circumstances stated above, the State party submits that no ascertainable fact, which might raise doubts about the impartiality of the domestic courts, exists. It is apparent from the materials of the case file that the trial judge cross-examined all parties to the case, be it police or the authors, rather thoroughly. Only after all the circumstances of the case were established and all the elements of the composition of the administrative offence were determined, the trial judge issued his verdict. A similar examination has also been conducted during the proceedings before the Court of Appeal. The Code of Administrative Offences of the Republic of Azerbaijan requires a rapid, comprehensive, thorough and objective examination of a case of an administrative character, the requirements, which, as it appears from the materials of the case file, were followed in the present case. The State party considers that regard should be attached to the fact that the proceedings in question concerned a violation of administrative nature, which involves a lesser degree of social danger than a crime; hence in certain instances lesser degree of scrutiny than, for example, in proceedings of criminal nature.
The State party also submits that nothing in the materials of the case file indicates that the court hearings were held in camera. In contrast, it is expressly stated in all the decisions of the Ganja Court of Appeal concerning the present case that it conducted hearings in open court.
The State party also observes that the authors had a right to submit motions on any matter, be it as they allege non-provision of the case materials or denial of the legal assistance. The authors had not submitted any motions, nor even raised alleged violations before the trial court. Consequently, the state party submits that there has been no violation of article 14.
The State party submits that the right to freedom to manifest one’s religion or beliefs is not absolute and may be subject to certain limitations that are prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. The State party submits that interference by the domestic authorities constituted, in the present case, a “limitation” of the exercise of the rights protected by articles 18 and 19 of the Covenant.
The State party submits that the words “prescribed by law” require that the impugned measure should have some basis in domestic law, and also refer to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. The interference in question was based on article 12 of the Law on Freedom of Religious Beliefs and article 299.0.2 of the Code of Administrative Offences of the Republic of Azerbaijan, which provided for sanction for the violation of rules established by legislation regarding the organising and conducting of religious meetings, street processions, and other religious ceremonies. The authors were well aware of those provisions of the legislation which were accessible. They even knew that those provisions applied to them. Possible limitations were formulated with sufficient precision to enable the authors to foresee the consequences which a given action may entail.
The State party submits that the interference pursued the legitimate aim of the protection of public order. Recent developments in the world, in particular regions geographically closely located to Azerbaijan, involving attempted coups d’etat and military interventions made it necessary for the authorities to apply stricter measures in the sphere of freedom of religion and freedom of expression to protect public order.
The State party submits that article 18 does not protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner that is dictated by one’s religion or beliefs. The State party refers to the case-law of the European Court of Human Rights case of Kokkinakis v Greece where it was argued that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on the freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.
The State party also emphasised that the national authorities have direct democratic legitimation and are in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight. The State party considers that this is a case, in particular, where questions concerning the relationship between State and religions are at stake. 15 As regards article 18 of the Covenant, the State party should thus in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”.
- See mutatis mutandis European Court of Human Rights, Cha'are Shalom Ve Tsedek v. France, application N 27417/95, judgement of 27 June 2000; European Court of Human Rights, Wingrove v. United Kingdom, application No. 17419/90, judgment of 25 November 1996. ↩
Similar principles appear to apply also in relation to article 19 of the Covenant.
The State party notes that the authors attended a religious meeting, which was held in contravention to provisions of the law. In particular, the Religious Association of Jehovah’s Witnesses did not obtain official permission from relevant associations to carry out religious activity in Ganja city. Therefore, the authors violated the rules of establishment and operation of religious communities and without relevant permission participated in a religious meeting held on 14 November 2015 in Ganja.
The State party submits that according to the Law, the religious community could operate only after its State registration with the relevant executive authority and its inclusion in the State registry of religious entities. Moreover, it could function only at the legal address specified in the information submitted for state registration. The legislator did not place a blanket ban on propagating religious views but excluded only such actions that are in breach of the law. In such circumstances, the authorities had sufficient reasons to intervene based on the provisions of the national legislation. Such measures were within the State’s margin of appreciation afforded by article 18 and 19 of the Covenant. The State party considers that the limitation imposed can be regarded as proportionate to the aim pursued, namely the protection of public order. The impinged limitations can thus be regarded as “necessary in a democratic society”. Consequently, the State party submits that there has been no violation of articles 18 and 19.
The State party relies on its observations with regard to articles 14,18 and 19 of the Covenant. It maintains that given the circumstances of the present case and after a thorough examination of all instances it becomes clear that the State party has not violated any of these articles. Accordingly, no violation of article 26 and 27 can be claimed to arise by the authors.
The State party states that the authors failed to show, that they were discriminated against on the basis of their religious origin. Article 12 of the Law on freedom of Religious Beliefs and article 299.0.2 of the Code of Administrative Offences of the Republic of Azerbaijan is equally applicable to all without any discrimination. All allegations with regard to discrimination are based on vague statements, without any reliable evidence, which could not be proved before the national courts. Consequently, the State party submits that there has been no violation of articles 26 and 27 of the Covenant.
Authors’ comments to the State party’s observations on merits
On 7 September 2018, the authors submitted their comments to the State party’s observations. They noted that the state party claims that the authors were not arrested or detained. As the communication describes, the police officers forced the authors into a minibus and took them to the police station. It was not an invitation in furtherance of a legitimate police inquiry. They did not go voluntarily. They were held in a basement room until early hours of the morning. They were “not free to go”. This was unquestionably an arrest under the law as defined by this Committee.
The State party admits that the authors were deprived of their liberty but attempts to minimise the deprivation by stating that it was done “briefly” and only to “enable explanations to be given”. Neither characterization is credible. The detention lasted almost ten hours, the authors not being released until the early hours of the morning. The authors’ evidence established that the circumstances and police conduct during the detention were coercive and intimidating, well beyond any legitimate investigatory purpose and well below the standards of a professional police force. As stated in the communication there can be no question that the deprivation of liberty was arbitrary.
In relation to the violation of article 14, the authors state that there was no court record. The only evidence was that of the authors. The authors provided seven statements, none of which were refuted by the State party and all of which established that there was a summary proceeding without evidence and in camera while they were without legal counsel. It was open to the State party to redress or, at a minimum reply to these allegations at the appeal level, but it chose not to do so. The authors submit that not only did the State party violate article 14 of the Covenant, it used the criminal justice system as an instrument to advance a policy of religious discrimination against a vulnerable minority.
The authors claim that the Law on Freedom of Religious Beliefs is imprecise, unconstitutional and violates the State party’s international commitments, thus it cannot be considered to be “prescribed by law” under the Covenant.
The authors argue that the State party did not present any evidence justifying its in terrorem argument. It gives neither specific nor causal connection between the alleged external political instability and a requirement that the authors register before being allowed to worship freely with one another. There is none. Prohibiting the peaceful, private religious discussion of the authors in a private home is far removed from any speculative State fear of political instability or preventing “coup d’etat and military intervention”.
The authors also state that the State party misconstrued the European Court of Human Rights decision in Kokkinakis v. Greece case, and has wrongly reiterated the discredited submission of the Greek government that limitations on religious activity are necessary because otherwise, “major unrest would be caused that would probably disturb the social peace”.
The authors submit that this Committee is better placed to evaluate the effect of applying the Law on Freedom of Religious Beliefs than the State.
The authors state that the State pretended that all they have to do was to register and then they could worship. By this, the State party admits that it imposes registration as a precondition before exercising religious freedom, an action that this Committee has established is “disproportionate and so does not meet the requirements of article 18”.16 The authors note that Jehovah’s Witnessed have repeatedly applied for and been refused State registration in the Ganja.
- See Malakhovsky and Pikul v. Belarus, (CCPR/C/84/D/1207/2003). ↩
Considerations of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
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.
The Committee observes that the State party has not expressly contested the authors’ argument that they exhausted all available domestic remedies, as required by article 5 (2) (b) of the Optional Protocol. However, the Committee notes the State party’s assertion that the authors had a right to submit motions on any matter, be it as they allege non-provision of the case materials or denial of the legal assistance. The authors had not submitted any motions, nor even raised alleged violations before the trial court. The Committee notes the authors’ information that they all filed motions for the case materials in order to prepare their defence which was not addressed by the court. In light of the information available on file, the Committee observes that in the particular circumstances of this case, the authors exhausted that domestic remedy for the purpose of article 5 (2) (b) of the Optional Protocol.
The Committee notes that when filing unsuccessful appeals of their convictions to the Ganja Court of Appeal, the authors expressly invoked articles 9 (1), 18 (1), (3), 19 (2), (3), 26 and 27 of the Covenant, and raised the substance of their allegations under article 14 (1), (3) (b) (d) of the Covenant. Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining those claims. However, the information made available to the Committee does not allow it to conclude that the authors raised their claims under article 14 (2), (3) (e) of the Covenant before the domestic courts. Thus, the Committee finds the authors’ claims under article 14 (2), (3) (e) of the Covenant inadmissible under article 5 (2) (b) of the Optional Protocol.
With respect to the authors’ claims under article 14 (3) (b) and (d) of the Covenant, the Committee observes that the authors were accused of an administrative offence, while article 14 (3) of the Covenant sets forth protections in cases regarding the determination of criminal charges against individuals. However, the Committee recalls that although criminal charges relate in principle to acts declared to be punishable under domestic criminal law, the concept of a “criminal charge” must be understood within the meaning of the Covenant, independently of the categorisations employed by the domestic legal systems of States parties.17 Such an interpretation is intended to avert situations that are incompatible with the object and purpose of the Covenant, whereby the imposition of punishment is transferred to administrative authorities in order to avoid application of the fair trial guarantees under article 14 of the Covenant.18 The Committee further recalls that the notion of a criminal charge may therefore extend to sanctions that, regardless of their qualification under domestic law, must be regarded as penal in nature because of their purpose and character or severity.19 The Committee notes that in the present case, the authors were apprehended at the scene of the events in question without being informed of the charges against them. On the first occasion, the authors waited at the police station for over ten hours and the next day they were taken directly to the District Court, which proceeded to convict them of an administrative offence and sanctioned them with the maximum monetary fine permitted under article 299.0.2 of the Code of Administrative Offences (AZN 2,000, approximately equivalent to € 1,094 at the time of the events). The Committee notes the authors’ assertion that the average monthly wage in 2015 in Azerbaijan was AZN 466.920. The Committee further observes that there is no indication that the purpose of the penalty was to provide pecuniary reparation or compensation for any harm caused. The Committee considers that the administrative penalty was aimed at sanctioning the authors for their actions and deterring them from future similar actions – objectives analogous to general goals of criminal law. The Committee further notes the general character of the administrative sanction, which related to the infringement of a law that was directed not towards a specific group possessing a special status in the manner, for example, of disciplinary law, but towards anyone in the general population who, in an individual capacity, conducted religious activity outside of a registered legal address. In a manner similar to criminal law, the administrative law in question proscribed conduct of a certain kind and made the resultant requirements subject to a determination of guilt and a punitive sanction. Given the punitive and deterrent purpose, general character and significant severity of the sanctions against the authors, the Committee considers that the authors’ claims fall within the scope ratione materiae of articles 14 (3) (b) and (d) of the Covenant, such that article 3 of the Optional Protocol does not constitute an obstacle to their admissibility.
- General Comment No. 32, (CCPR/C/GC/32 ), para. 15; Sadykov v. Kazakhstan (CCPR/C/129/D/2456/2014), para. 6.6; Osiyuk v. Belarus (CCPR/C/96/D/1311/2004), para. 7.3; Insenova v. Kazakhstan (CCPR/C/126/D/2542/2015 and CCPR/C/126/D/2543/2015), para. 8.5; Zhagiparov v. Kazakhstan (CCPR/C/124/D/2441/2014), para. 13.7; Rybchenko v. Belarus (CCPR/C/124/D/2266/2013), para. 8.10; V.P. v. Belarus (CCPR/C/129/D/2337/2014), para. 7.5. ↩
- Osiyuk v. Belarus (CCPR/C/96/D/1311/2004), para. 7.3. ↩
- Sadykov v. Kazakhstan (CCPR/C/129/D/2456/2014), para. 6.6. ↩
- Approximately EUR 259. ↩
The Committee notes the State party’s argument that the authors’ claims under article 14 of the Covenant are inadmissible because they are insufficiently substantiated. The Committee notes that none of the authors was provided with the case materials before the hearing even though they requested them. The Committee notes the State party information that nothing indicates that the authors asserted before judicial officers a right to be represented by a counsel of their own choosing. The Committee also notes the author’s submission where they stated that the judge’s secretary informed the authors that it was a closed court hearing, and asked friends and legal advisors to leave the courtroom. Accordingly, the Committee considers that the author’s claims under article 14 (3) (b) and (d) are sufficiently substantiated and are therefore admissible under article 2 of the Optional Protocol.
The Committee also notes the authors’ claim under article 14 (1) of the Covenant that the District Court judge violated their right to public hearing by holding a secret trial without their friends and their counsels’ presence. The Committee further notes the State party’s position that all hearings concerning the present case were conducted in public and all the decisions rendered in open court, including the appeal before the Ganja Court of Appeal.. The Committee notes that the State party did not provide enough information to conclude that all hearings especially the first court hearings were public. In the absence of any further information, the Committee considers that the authors have sufficiently substantiated this aspect of their claim under article 14 (1) of the Covenant and thus declares it admissible under article 2 of the Optional Protocol.
The Committee also notes the authors’ claim under article 14 (1) of the Covenant that the domestic courts denied them basic elements of a fair trial and arrived at decisions without evidence, thereby violating the requirements of impartiality and independence of the judiciary. The authors also claim that the Appeal Court could have corrected these irregularities by ordering a new trial or receiving evidence. However, the Appeal Court sidestepped the issues. The authors argue that the cursory review by the Court of Appeal of their allegations did not remedy the unfairness of the trial and demonstrates that the court was not impartial, in violation of article 14 and of the right to an independent judiciary. The Committee further notes the State party’s position that, the authors’ complaints have been carefully considered by the domestic courts and that nothing suggests in the present case that the conclusion reached by the domestic courts was unreasonable. The Committee also notes the State party’s position that, the authors did not present any proof either to this Committee or to the appeal court concerning the impartiality of a trial judge. The Committee considers that the author’s general claim and the information contained in the case file do not allow the Committee to reach a conclusion on this allegation. Accordingly, the Committee declares this part of the communication insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.
With respect to the authors’ claims under articles 26 and 27 of the Covenant, the Committee notes that the authors have not provided details about the ways they have been discriminated against as being part of a religious minority in Azerbaijan. The Committee considers that these claims are therefore insufficiently substantiated for purposes of admissibility, and are inadmissible under article 2 of the Optional Protocol.
The Committee considers that the authors have sufficiently substantiated, for the purposes of admissibility, their claims under articles 9 (1), 14 (1), (3) (b), (d), 18 and, 19 of the Covenant. The Committee thus declares these claims admissible and proceeds to examine them on the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
The Committee notes the authors’ claim that they were denied a fair and public trial in violation of article 14 (1) of the Covenant, since the trial was not public as friends and legal advisors were not allowed to attend hearings in the Ganja City Kapaz District Court. The Committee notes the State Party’s submission that nothing in the materials of the case file indicates that the court hearings were held in camera; in contrast, all decisions of the Ganja Court of Appeal were taken in open hearings. In the absence of any other information by the State party. which in this situation is the only party with access to the court materials to clarify the situation of court hearings in Ganja City Kapaz District Court, the Committee decides that due weight must be given to the authors’ allegations. Accordingly, the Committee concludes that the facts before it constitutes a violation of article 14 (1) of the Covenant.
The Committee notes the authors’ claims that the State party’s courts did not offer them the minimum guarantees set forth in article 14 (3) (b) and (3) (d) of the Covenant. The Committee notes the authors’ contention that they were not able to prepare for their defence, as their requests for the case materials were not satisfied. The Committee notes the authors’ contention that they were not able to have legal counsels, as they were not allowed to participate in the court hearings. The State party, in its observations, submitted that the authors had a right to submit motions on any matter, be it as they allege non-provision of the case materials or denial of the legal assistance; however, they did not do so. The Committee recalls its jurisprudence according to which the requirement of adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing are important elements of the guarantee of a fair trial and an application of the principle of equality of arms.21 The Committee notes the uncontested claim from the authors that they were not given the case materials and their legal counsels were not allowed to represent them. In the circumstances as described by the author, and in the absence of any pertinent explanations from the State party, the Committee finds that the State party violated the author’s rights under article 14 (3) (b) and (d) of the Covenant.22
With respect to the authors’ claim under article 18 (1) and (3) of the Covenant, the Committee recalls its general comment No. 22, according to which article 18 does not permit any limitation whatsoever on freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice.23 By contrast, the right to freedom to manifest one’s religion or beliefs may be subject to certain limitations, but only those prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. In the present case, the Committee notes the authors’ arguments that the State party violated their rights under article 18 (1) of the Covenant by apprehending them during a private religious discussion in Mr. Panahov’s home; taking them to the police station, where they were held for over ten hours; convicting them of an administrative offense; and fining them 2,000 manats (approximately 1 094 Euros) each. The authors were punished for conducting religious worship outside of a legally recognized address, since they were not granted the status of a religious association with a legally designated address. Applying its general comment No. 22, in which it stated that the freedom to manifest religion or belief may be exercised either individually or in community with others and in public or private, the Committee considers that the authors’ claims relate to their right to manifest their religious beliefs, and that the arrest, detention, conviction and fine constitute limitations of that right.24
The Committee must address the issue of whether the said limitations on the authors’ right to manifest their religious beliefs were “necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others,” within the meaning of article 18 (3) of the Covenant. The Committee recalls that according to its general comment No. 22, article 18 (3) is to be interpreted strictly, and limitations on the freedom to manifest one’s religion or beliefs may only be applied for those purposes for which they are prescribed, and must be directly related and proportionate to the specific need on which they are predicated.25
- General comment No. 22 (CCPR/C/21/Rev.1/Add.4), para. 8; see also Malakhovsky et al. v. Belarus (CCPR/C/84/D/1207/2003), para. 7.3. ↩
In the present case, the limitations placed on the authors’ right to manifest their religious beliefs stem from the requirement under article 299.0.2 of the Code of Administrative Offenses that a religious association officially register with the Government in order to lawfully operate. The Committee notes that the State party has not specifically explained why the authors were punished for engaging in religious worship without having met the precondition of officially registering as a religious association. The Committee also notes that the State party has not provided evidence indicating that the peaceful manifestation of the authors’ religious beliefs in Mr. Panahov’s home threatened public safety, order, health, or morals, or the fundamental rights and freedoms of others. The Committee further observes that the State party has not described any context, or provided any example, in which there was a specific and significant threat to public order and safety that would justify the blanket ban on religious worship outside of a registered religious organization. Even if the State party could demonstrate the existence of a specific and significant threat to public safety and order, it has failed to demonstrate that the registration requirement of article 299.0.2 of the Code of Administrative Offenses was proportionate to that objective, in view of its considerable limitation on the act of religious worship. Nor has the State party attempted to demonstrate that the requirement was the least restrictive measure necessary to ensure the protection of the freedom of religion or belief. While the State party has noted that article 18 (3) of the Covenant permits certain restrictions on the right to manifest one’s religion or beliefs in order to protect the fundamental rights and freedoms of others, the Committee observes that such protection requires identifying which specific fundamental rights are affected, and the persons so affected. The Committee notes that article 18 (3) exceptions are to be interpreted strictly and not applied in the abstract. In the present case, the State party has not identified any specific fundamental rights or freedoms of others that were affected by the religious worship conducted by the authors in Mr. Panahov’s home. Accordingly, the Committee considers that the State party has not provided a sufficient basis for the limitations imposed, so as to demonstrate that they were permissible within the meaning of article 18 (3) of the Covenant.26
- See, Mammadov, Niftaliyev and Abbasova v. Azerbaijan (CCPR/C/129/D/2928/2017), para. 7.5. ↩
The Committee observes that during domestic proceedings, the Ganja City Kapaz District Court upheld the authors’ convictions and fines on the ground that the activity of the community of Jehovah’s Witnesses and the authors worshipping in Mr. Panahov’s home violated various requirements of the Law on Freedom of Religious Beliefs. Specifically, the State party cited the provision of the Law stating that religious associations may operate only after being officially registered, and may operate at places of worship specified in the information presented for State registration as the legal address. The Committee recalls that article 18 (1) of the Covenant protects the right of all members of a religious congregation to manifest their religion in community with others, in worship, observance, practice and teaching.27 The Committee considers that the justifications provided by the State party do not demonstrate how the requirements to be legally registered as an association prior to conducting religious worship were proportionate measures necessary to serve a legitimate purpose within the meaning of article 18 (3) of the Covenant. The Committee notes that the State party did not advance any argument as to why it was necessary for the authors to first register with the Government before practicing their religion in a community in a private home. The Committee concludes that the punishment imposed on the authors amounted to a limitation of their right to manifest their religion under article 18 (1) of the Covenant, and that neither the domestic authorities nor the State party has demonstrated that the limitation represented a proportionate measure necessary to serve a legitimate purpose identified in article 18 (3) of the Covenant. Accordingly, the Committee concludes that by arresting, detaining, convicting and fining the authors for holding the religious meeting, the State party violated their rights under article 18 (1) of the Covenant.
- See, inter alia, Leven v. Kazakhstan (CCPR/C/112/D/2131/2012), para. 9.4. ↩
The Committee notes the authors’ claim that the police arbitrarily took them to a police station and detained them for ten hours. Noting the position of the domestic authorities that this incident did not represent a deprivation of liberty but a mere invitation to take explanations and compile the documents, the Committee must first ascertain whether the authors were deprived of their liberty within the meaning of article 9 (1) of the Covenant. The Committee recalls its general comment No. 35, in which it stated, “Deprivation of personal liberty is without free consent. Individuals who go voluntarily to a police station to participate in an investigation, and who know that they are free to leave at any time, are not being deprived of their liberty.”28 In contrast, the Committee notes the authors’ claim that they were not free to leave police custody during the relevant period. In the absence of information from the State party contesting this specific allegation and indicating that the authors could have freely decided not to accompany the police officers to the police station or, once there, could have left at any time without facing adverse consequences, the Committee concludes that the authors were coerced into accompanying the police to the station and remaining there until their release, and were therefore deprived of their liberty.
- CCPR/C/GC/35 (2014), para. 6. ↩
Recalling that under article 9 (1) of the Covenant, deprivation of liberty must not be arbitrary, and must be carried out with respect for the rule of law,29 the Committee must next assess whether the authors’ arrest and detention were arbitrary or unlawful. The Committee recalls that the protection against arbitrary detention is to be applied broadly, and that the “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.30 The Committee also recalls that arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant is arbitrary, including freedom of religion.31 The Committee notes the authors’ allegation that Jehovah’s Witnesses face a pattern of harassment by the State party’s authorities, and that in the authors’ specific case, the officers did not inform the authors of the charges against them at the time of their arrest and apprehension. The Committee therefore considers that the actions of the police lacked appropriateness, predictability and regard for due process guarantees. Further, referring to its findings in paragraph 9.5 above, the Committee considers that the authors’ arrest and detention constituted punishment for the legitimate exercise of their right to manifest their religious beliefs. The Committee therefore concludes that the authors were arbitrarily arrested and detained in violation of their rights under article 9 (1) of the Covenant.
In the light of its findings, the Committee does not deem it necessary to examine whether the same facts constitute a violation of article 19 of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it discloses a violation of each of the authors’ rights under articles 14 (1), (3) (b) and (d), 9 (1) and 18 (1) of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose rights under the Covenant have been violated. Accordingly, the State party is obligated to, inter alia, provide the authors with adequate compensation, including reimbursement for the fines imposed and for court fees incurred by them. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, including by reviewing its domestic legislation, regulations and/or practices with a view to ensuring that the rights under the Covenant may be fully enjoyed in the State party.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and disseminate them widely in the official languages of the State party.