Last Updated on February 1, 2024 by LawEuro
European Court of Human Rights (Application no. 34015/17 and 26896/18)
The applicant maintained his complaint, submitting that his criminal conviction for preaching and conducting Friday prayers in a mosque had amounted to an unjustified interference with his right to manifest his religion. He argued that the interference in question had not been prescribed by law and had not been necessary in a democratic society.
The Government agreed that the applicant’s criminal conviction had constituted an interference with his right to manifest his religion. That interference had been prescribed by Article 168-1.3.1 of the Criminal Code and had pursued the legitimate aim of the protection of public order and the preservation of the conditions of “living together” as an element of “the protection of the rights and freedoms of others”. The aim of the legal provision in question was to prevent negative influences of foreign religious extremist and fundamentalist ideologies not recognising and threatening the rule of law, secularism, pluralism and the constitutionalism of democratic States and to protect the public from the negative consequences of the dissemination of such ideologies among the population.
Relying on the Court’s case-law indicating the incompatibility of Sharia with democratic values and having regard to the wide margin of appreciation afforded to the State in this context, the Government submitted that in the present case the ban imposed by the law could be regarded as proportionate to the aim pursued.
The European Court of Human Rights notes that it is undisputed by the parties that there was an interference with the applicant’s right to freedom of religion on account of his criminal conviction for preaching and conducting Friday prayers in a mosque. The Court shares this view.
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.
The European Court of Human Rights observes that the applicant’s criminal conviction was based on Article 168-1.3.1 of the Criminal Code, which at the relevant time criminalised the conduct of Islamic religious rites and rituals by a citizen of the Republic of Azerbaijan who had obtained his religious education abroad. This law was accessible and foreseeable and, therefore, the interference with his right to freedom of religion was “prescribed by law” within the meaning of Article 9 § 2 of the Convention.
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.
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.
Under the terms of Article 9 § 2 of the Convention, any interference with the right to freedom of religion must be “necessary in a democratic society”. An instance of interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and in particular if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”.
According to its settled case-law, the Court leaves to States Parties to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary, but that goes hand in hand with European supervision of both the relevant legislation and the decisions applying it. The Court’s task is to ascertain whether the measures taken at national level are justified in principle and proportionate (see Masaev, cited above, § 24).
The Court observes that the applicant was convicted under Article 168-1.3.1 of the Criminal Code, which at the relevant time provided for criminal penalties for breaches of the blanket ban – laid down in the Law on freedom of religious belief of 20 August 1992 – on the conduct of Islamic religious rites and rituals by a citizen of the Republic of Azerbaijan who had obtained his religious education abroad. The Court notes that there is no indication whatsoever that the Islamic religious rites and rituals that the applicant conducted contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society. He was thus punished solely for failing to comply with new legal requirements introduced in December 2015 that were applicable to citizens of the Republic of Azerbaijan who had obtained their religious education abroad.
The Government explained the rationale behind the criminalisation of the conduct of Islamic religious rites and rituals by a citizen of the Republic of Azerbaijan who had obtained his religious education abroad by the fight against religious extremism and the protection of democratic values. The Court is aware of the fundamental importance of secularism in Azerbaijani statehood and the respondent State’s attachment to religious tolerance. However, it cannot accept the Government’s argument that the applicant’s criminal conviction was necessary in a democratic society on account of the State’s fight against religious extremism and its protection of democratic values.
In that connection, the Court notes at the outset that it shares the concerns expressed in Joint Opinion no. 681/2012 of the Venice Commission and the OSCE/ODIHR, which emphasised the unnecessarily strict nature of the restriction imposed on the exercise of the right to freedom of religion by a person solely on the basis of his or her place of study. In particular, in the Court’s view, punishing a person for merely conducting religious rites and rituals on account of his or her place of study can hardly be considered compatible with the exercise of the freedom of religion as protected by Article 9 of the Convention.
Furthermore, the Court is not convinced that a ban preventing any person who obtained his religious education abroad from conducting Islamic religious rites and rituals may constitute an appropriate instrument of the fight against religious extremism. In that connection, the Court notes that it is apparent that in so far as the restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from religious extremism or any other forms of intolerance.
In these circumstances, the Court cannot but conclude that the interference with the applicant’s right to freedom of religion has not been shown to pursue any “pressing social need”. As a result, the interference with the applicant’s right, in community with others and in public, to manifest his religion in worship and teaching was not “necessary in a democratic society”, for “the protection of public order” under Article 9 § 2 of the Convention. There has accordingly been a violation of Article 9 of the Convention.
CASE OF SARDAR BABAYEV v. AZERBAIJAN (European Court of Human Rights) 34015/17 and 26896/18. Full text of the document.