European Court of Human Rights

 

 

FIFTH SECTION

CASE OF SHEVELI AND SHENGELAYA v. AZERBAIJAN

(Application no. 42730/11)

 

 

 

 

JUDGMENT

STRASBOURG

5 November 2020

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Sheveli and Shengelaya v. Azerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Mārtiņš Mits, President,
          Latif Hüseynov,
          Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having regard to:

the application against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mr Vepkhvia Sheveli and Ms Ekaterine Shengelaya (“the applicants”), on 11 July 2011;

the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Article 9 of the Convention and Article 1 of Protocol No. 7 to the Convention and to declare inadmissible the remainder of the application;

the decision to give notice to the Georgian Government of their right to intervene in the proceedings in respect of the applicants’ complaints (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), of which they did not avail themselves;

the parties’ observations;

Having deliberated in private on 6 October 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  Relying on Article 9 of the Convention and Article 1 of Protocol No. 7 to the Convention respectively, the applicants complained that the domestic authorities had unlawfully interfered with their right to freedom of religion and arbitrarily deported them from the territory of the respondent State.

THE FACTS

2.  The applicants were born in 1971 and 1970 respectively and live in Georgia. They were represented by Mr R. Cook, Mr A. Carbonneau and Mr J. Wise, lawyers practising in the United Kingdom, Canada and Georgia respectively.

3.  The Government were represented by their Agent, Mr Ç.Əsgərov.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicants are members of the religious community of Jehovah’s Witnesses.

6.  On 18 December 2010, while participating in a religious meeting of Jehovah’s Witnesses in a private apartment in Ganja, the applicants were arrested during a police raid on the meeting. They were taken to Nizami District Police Department, where two separate reports (inzibati xəta haqqında protokol) on the administrative offence of violating the legislation on freedom of religion as a foreigner under Article 300.0.4 of the Code of Administrative Offences (“the CAO”) were drawn up against them.

7.  On the same date, by separate decisions, the Nizami District Court found the applicants guilty under Article 300.0.4 of the CAO and ordered their deportation. In particular, the court found that the applicants had willingly attended the religious meeting which had been held unlawfully by local fellow members of the unregistered Jehovah’s Witnesses congregation at private premises. Moreover, the applicants had admitted that they had engaged in religious discussion. Therefore, the purpose of their participation in the meeting in question had been to conduct religious propaganda.

8.  The applicants were deported from Azerbaijan on 20 December 2010, and on an unspecified date they lodged appeals against the first-instance court’s decisions. In their submissions, the applicants admitted that they had participated in a religious meeting, but argued that the meeting had not involved any unlawful activity. They also complained that their arbitrary deportation had been contrary to Article 1 of Protocol No. 7 to the Convention.

9.  On 8 April 2011, by separate decisions, the Ganja Court of Appeal dismissed the applicants’ appeals. Endorsing the findings of the first‑instance court, the appellate court further found that since the Jehovah’s Witnesses’ Ganja congregation had not been registered and the applicants were not members of the Jehovah’s Witnesses’ registered branch in Baku, both the religious gathering held on 18 December 2010 and the applicants’ participation in that gathering had been unlawful. Accordingly, the authorities had acted within the limitations prescribed by the domestic law and Article 9 § 2 of the Convention, and their actions had been necessary in a democratic society in the interests of public safety, for the protection of public order and the rights and freedoms of others. The decision was not amenable to further appeal.

10.  In the meantime, on 18 January 2011 the applicants had lodged a civil claim against the Migration Service, the Ministry of Internal Affairs and the Nizami District Police Department with the Binagadi District Court, asking the court to annul the decision concerning their deportation and declare it unlawful.

11.  On 26 January 2011 the Binagadi District Court decided that the examination of the applicants’ claim fell outside its jurisdiction, and it transferred the case to Baku Administrative Economic Court No. 1.

12.  On 20 July 2012 Baku Administrative Economic Court No. 1 rejected the claim. It found that the authorities had acted in compliance with the relevant domestic legislation, particularly the Law on Freedom of Religious Belief, which clearly prohibited the conduct of any kind of religious propaganda by foreigners. Relying on the copies of their passports which were available in the case file, the court also found that the applicants had entered the territory of the respondent State on 20 November 2010 and had been deported on 20 December 2010.

13.  On 21 November 2012 and on 4 April 2013 respectively the Baku Court of Appeal and the Supreme Court upheld the first‑instance court’s judgment.

RELEVANT LEGAL FRAMEWORK

A.    The Constitution of the Republic of Azerbaijan

14.  At the material time the relevant provisions of the Constitution provided as follows:

Article 48.  Freedom of conscience

“I.  Everyone enjoys freedom of conscience.

II.  Everyone has the right to independently determine his or her attitude to religion, to profess, individually or together with others, any religion or refrain from following one, to express and disseminate his or her religious beliefs ...

III.  [People] shall be free to hold religious ceremonies, provided that [those ceremonies] do not violate public order or public morals.

IV.  Freedom of conscience and religion shall not serve as a basis for exemption from responsibility for violation of the law ...”

B.     The Law on Freedom of Religious Belief of 10 August 1992

15.  Article 1 of the Law on Freedom of Belief, as in force at the material time, prohibited the conduct of religious propaganda by foreigners and stateless persons. Article 21 provided that, subject to the requirements of Article 1, people were free to hold services of religious worship, rites and ceremonies at places of worship and adjacent areas, shrines, cemeteries, religious organisations, and citizens’ houses and apartments.

C.    The Code of Administrative Offences

16.  At the material time the relevant provisions of the CAO provided as follows:

Article 300.  Violation of legislation concerning freedom of religion

“300.0.  Violation of the legislation concerning freedom of religion, namely:

...

300.0.4.  the conduct of religious propaganda by foreigners or stateless persons - shall be punishable by a fine in the amount of two hundred to four hundred manats and ... the seizure of the literature, items and material directly forming the subject of the administrative offence, and ... administrative expulsion from the territory of the Republic of Azerbaijan.”

Article 432.  Time-limits for submitting a complaint or protest

“432.1.  A complaint against a decision in an administrative case may be submitted within ten days [of the decision] being presented or delivered.

...”

Article 439.  Enforceability of a decision delivered in an
administrative case, or a decision delivered following
a complaint or objection

“439.0.  A decision delivered in an administrative case, as well as a decision delivered following a complaint or protest, shall become enforceable in the following [way]:

439.0.1.  after the expiration of the time-limit for submitting a complaint against such a decision, provided that no complaint or protest has been lodged against it.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

17.  The applicants complained that the authorities’ undue interference with their freedom of worship and their practice had amounted to a violation of their right to freedom of religion. Article 9 of the Convention provides:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

A.    Admissibility

18.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

19.  The applicants submitted that they had been attending a peaceful religious meeting no different from many others which had previously been held on several occasions at different locations across the respondent State. Attending such meetings for worship was a well-known custom of Jehovah’s Witnesses throughout the member States of the Council of Europe and elsewhere in the world. Holding such a meeting was in conformity with the domestic legislation, and they could not have foreseen that their right to assemble for religious worship and teaching at a private home would be terminated for an unknown reason.

20.  The applicants further argued that the peaceful exercise of religious freedom in which they had been engaged, namely sharing their personal thoughts with others in a religious discussion held at private premises, could not be considered “propaganda” in the generally accepted meaning of this word, and was not prohibited under the Convention. Moreover, the term “propaganda” as provided for by Article 300.0.4 of the CAO purported to penalise a foreigner even introducing religious aspects of a new culture to another person, and the broad application of that provision prohibited any activity, no matter how innocent, if it was religious and carried out by a foreigner, which could not be a legitimate aim of a law in any democratic society. Furthermore, the Government’s assertion that the interference with the applicants’ religious worship had been necessary to protect public safety, order or the fundamental rights and freedoms of others had not been substantiated by reference to any connection between the applicants’ conduct and these aims. Therefore, the interference could not be considered to be prescribed by law and had not been necessary within the meaning of Article 9 § 2.

21.  The Government accepted that there had been interference with the applicants’ rights under Article 9 of the Convention, but argued that it had been prescribed by law, namely by Article 300.0.4 of the CAO. The law had been accessible to the applicants, who could reasonably have foreseen the consequences of their actions. In the Government’s view, the term “religious propaganda” was sufficiently clear and the applicants’ acts in allegedly sharing their views with other participants in the religious meeting certainly fell under this definition, given the fact that neither they nor any other participants in the meeting in question had ever insisted that someone else had chaired the meeting. Therefore, the authorities had been entitled to prevent the applicants’ conduct, as foreigners, of religious propaganda, as part of a general policy to limit attempts by numerous radical religious movements active in the region to disseminate their views among the population in the country, and to secure public order in accordance with the requirements of both the domestic legislation and the Convention. It followed that the interference had to be regarded as necessary in a democratic society for the purposes of Article 9 of the Convention.

2.    The Court’s assessment

(a)    Whether there was an interference

22.  The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; S.A.S. v. France [GC], no. 43835/11, § 124, ECHR 2014 (extracts); and İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 103, 26 April 2016).

23.  Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief alone and in private, but also to practise in community with others and in public. The manifestation of religious belief may take various forms, namely worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31, and Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005‑XI). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 80, ECHR 2013 (extracts)).

24.  Turning to the circumstances of the present case, the Court notes that it is undisputed by the parties that there was an interference with the applicants’ right to freedom of religion on account of the applicants’ having been found guilty of an offence in that they conducted a religious propaganda at the gathering on 18 December 2010. The Court shares this view.

(b)    Whether the interference was justified

25.  Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 9. The Court must therefore ascertain whether the interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph, and was “necessary in a democratic society” in order to achieve that aim or aims.

26.  The Court reiterates that the expression “prescribed by law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the persons concerned, who must moreover be able to foresee its consequences for them, and compatible with the rule of law (see, mutatis mutandis, Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)).

27.  The Court further reiterates that the requirement of “foreseeability” is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation thereof, what acts and omissions will engage his responsibility (see Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, § 50, 2 December 2014).

28.  The Court also reiterates that it is not its task to substitute its own interpretation for that of the national authorities, and notably the courts, as it is primarily for the latter to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176 A, and Islam‑Ittihad Association and Others v. Azerbaijan, no. 5548/05, § 49, 13 November 2014).

29.  The Court notes that in the present case the Government relied on Article 300.0.4 of the CAO (see paragraph 21 above) as a legal basis for the interference with the applicants’ right. The applicants, in turn, argued that the term “religious propaganda” in Article 300.0.4 was not sufficiently formulated, and therefore the application of this Article was not foreseeable.

30.  In this connection, the Court notes that although Article 21 of the Law on Freedom of Religious Belief provided that people were free to hold services of religious worship in citizens’ houses and apartments, it also subjected this provision to the requirements of Article 1 of the same Law, which at the relevant time, prohibited the conduct of “religious propaganda” by foreigners or stateless persons (see paragraph 15 above).

31.  However, neither the Law on Freedom of Religious Belief nor the CAO provided any kind of definition of what constituted “religious propaganda”. In other words, on the basis of the above-mentioned provisions, it was not possible to determine what specifically might or might not constitute “religious propaganda”.

32.  Moreover, the domestic courts did not make any legal assessment or give any definition of “religious propaganda” to demonstrate that the applicants had engaged in such activities (see paragraphs 7 and 9 above). It appears from the reasoning of their decisions that the applicants were found guilty of an offence merely because of their participation in the religious meeting.

33.  Neither was there a clear legal basis for the domestic courts to rely on the facts that the Jehovah’s Witnesses’ Ganja congregation had not been registered, and that the applicants were not members of the Jehovah’s Witnesses’ registered branch in Baku. They did not refer to any provisions of the national legislation setting out a requirement that a religious gathering on private premises cannot take place without registration or that all participants must be members of a registered congregation.

34.  In this regard, the Court finds it necessary to reiterate that, while States can put in place a requirement that religious denominations be registered in a manner compatible with Articles 9 and 11 of the Convention, it does not follow that sanctioning the individual members of an unregistered religious denomination for praying or otherwise manifesting their religious belief is compatible with the Convention. To admit the contrary would amount to the exclusion of minority religious beliefs which are not formally registered with the State, and consequently would amount to admitting that a State can dictate what a person must believe (see Masaev v. Moldova, no. 6303/05, § 26, 12 May 2009).

35.  Accordingly, the Court considers that the lack of clear legal basis for the applicants’ conviction, as well as, above all, the lack of any definition of the term “religious propaganda”, made it impossible for the applicants to foresee the consequences of their activities.

36.  The foregoing considerations are sufficient to enable the Court to conclude that the condition of foreseeability of the domestic law was not satisfied and therefore that the interference was not prescribed by law.

37.  Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 9 § 2 (in respect of a “legitimate aim” and the “necessity of the interference”) have been complied with.

38.  There has accordingly been a violation of Article 9 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 7 to the Convention

39.  The applicants complained that the authorities had failed to provide substantive reasoning for their deportation, given the absence of interests of public order or national security issues. Article 1 of Protocol No. 7 to the Convention provides:

“1.  An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a)  to submit reasons against his expulsion,

(b)  to have his case reviewed, and

(c)  to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2.  An alien may be expelled before the exercise of his rights under paragraph 1.(a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

A.    Admissibility

40.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

41.  The applicants submitted that since they had been enjoying a peaceful meeting in a private home and the aim of their expulsion had been to punish them for peacefully exercising their Convention rights, the respondent State could not assert that there had been a need to protect public order. Moreover, they had been penalised by being expelled in the absence of a suspensive appeal, while the Government had failed to provide sound reasons to justify such an interference.

42.  The Government reiterated their arguments submitted in response to the applicants’ complaint under Article 9 of the Convention, and maintained that the applicants had been expelled in order to secure public order.

2.    The Court’s assessment

43.  The Court emphasises that the notion of “expulsion” is an autonomous concept which is independent of any definition contained in domestic legislation. With the exception of extradition, any measure compelling an alien’s departure from the territory where he is lawfully resident constitutes “expulsion” for the purposes of Article 1 of Protocol No. 7 (see Bolat v. Russia, no. 14139/03, § 78, ECHR 2006‑XI (extracts)). The Court reiterates that the High Contracting Parties have a discretionary power to decide whether to expel an alien present in their territory, but this power must be exercised in such a way as not to infringe the rights under the Convention of the person concerned (see Nolan and K. v. Russia, no. 2512/04, § 114, 12 February 2009). The Court further reiterates that if aliens who are lawfully resident in the territory of a State which has ratified Protocol No. 7 are expelled, they have the benefit of the specific guarantees provided for in Article 1 of that Protocol (see Kaya v. Romania, no. 33970/05, §§ 51 and 52, 12 October 2006, and C.G. and Others v. Bulgaria, no. 1365/07, § 70, 24 April 2008).

44.  In the present case, it appears from the documents in the case file that the applicants were admitted into Azerbaijani territory on 20 November 2010, with the purpose of having a short stay, and were deported on 20 December 2010 (see paragraph 12 above) following the decision of the Nizami District Court.

45.  The Court notes that the basic guarantee afforded to the persons referred to in Article 1 of Protocol No. 7 is that they shall not be expelled except “in pursuance of a decision reached in accordance with law” (see Bolat, cited above, § 81).

46.  The Court observes that under Azerbaijani law, a judicial decision delivered in administrative proceedings becomes enforceable ten days after being served on a party, unless it is challenged before a higher court (see paragraph 16 above). However, in the present case, the applicants’ expulsion, which was ordered by the Nizami District Court’s decisions of 18 December 2010 and did not contain a clause providing for immediate enforceability, was executed on 20 December 2010, only two days after the relevant decisions had been delivered at the court hearing, and at a time when they had not yet become enforceable. The Government did not point to any legal provisions that would permit a person’s expulsion in the absence of an enforceable judicial decision. It follows that there has been no “decision reached in accordance with law”, which is the sine qua non condition for compliance with Article 1 of Protocol No. 7, and that the expulsion did not conform to the above-mentioned requirement of the first paragraph of Article 1 of Protocol No. 7 (compare Bolat, cited above, § 82).

47.  There has been therefore a violation of Article 1 of Protocol No. 7.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

49.  The applicants each claimed 8,000 euros (EUR) in respect of non‑pecuniary damage.

50.  The Government argued that the amounts claimed were excessive, submitting that, in any event, a finding of a violation would constitute sufficient just satisfaction.

51.  The Court considers that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 1,500 under this head, plus any tax that may be chargeable on this amount.

B.     Costs and expenses

52.  The applicants claimed EUR 9,600 for legal costs incurred in the proceedings before the domestic courts and the Court. They also claimed EUR 27.27 for court fees incurred in the domestic proceedings and postal expenses. In support of their claim for expenses, the applicants submitted two receipts.

53.  The Government submitted that the applicants had not produced any evidence to show that they had actually paid or were legally bound to pay any fees for their representatives’ work, which suggested that the representatives were working free of charge. Moreover, the receipts in respect of court fees referred to a completely different person, and the applicants had in no way substantiated that person’s involvement in the case.

54.  In the present case, the Court observes that the applicants did not submit documents showing that they had paid or were under a legal obligation to pay the fees charged by their representatives. It therefore finds no basis on which to accept that the costs claimed by the applicants have actually been incurred by them (see Merabishvili v. Georgia [GC], no. 72508/13, § 372, 28 November 2017, and Jafarov and Others v. Azerbaijan, no. 27309/14, §§ 103-106, 25 July 2019). It follows that this part of the claim must be rejected.

55.  As to the part of the claim concerning expenses, the Court observes that the receipts submitted in support of that claim refer to somebody other than the applicants, and that the applicants failed to submit any evidence proving that the person in question had somehow been involved in the present case. It follows that this part of the claim must also be rejected.

C.    Default interest

56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 9 of the Convention;

3.      Holds that there has been a violation of Article 1 of Protocol No. 7 to the Convention;

4.      Holds

(a)   that the respondent State is to pay, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, to each of the applicants in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 5 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Anne-Marie Dougin                                                               Mārtiņš Mits
Acting Deputy Registrar                                                            President