Last Updated on April 28, 2019 by LawEuro
Communicated on 26 March 2019
FIRST SECTION
Application no. 43082/14
Marina HAMZAYAN
against Armenia
lodged on 10 June 2014
STATEMENT OF FACTS
The applicant, Ms Marina Hamzayan, is an Armenian national who was born in 1980 and at the material time lived in Stepanakert in the unrecognised Republic of Nagorno Karabakh (‘NKR’). She currently lives in Yerevan and is represented before the Court by Mr S.H. Brady Heath and Mr A. Carbonneau, lawyers practising in Strasbourg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 23 February 2013 the applicant, a Jehovah’s Witness, and A.H. visited interested persons in the town of Shushi, NKR, to discuss the Bible.
They were invited into the home of an elderly woman, N., with whom A.H. was acquainted.
Shortly thereafter the police arrived and searched the applicant’s and A.H.’s belongings. A search record was drawn up and stated that the religious literature found in the applicant’s bag had been seized.
According to the applicant, she and A.H. had then been taken to the police station where they were interrogated and their belongings searched once again. They were kept at the police station for about four and a half hours.
On an unspecified date the applicant was informed by the Administrative Commission of the Stepanakert Mayor’s Office (‘the Commission’) that she had been charged with an administrative offence under Article 206 § 2 of the Code of Administrative Offences of NKR. She was summoned to appear at a hearing to be held on 2 April 2013.
On 2 April 2013 the Commission held a hearing and imposed a fine of 1,000 Armenian Drams (approximately 2 euros) on the applicant for breaching the rules for organising and conducting religious assemblies, rallies, marches and other worship rituals. The decision, in so far as the charges against the applicant are concerned, read as follows:
“As a result of the discussion the [Commission]
…
Examined – The materials about [the applicant] received from … the police … concerning the violation of the legislation on religious association under Article 206 § 2 of the [CAO].
The Chairman stated that the previous session was adjourned based on the [the applicants’ lawyers’] request to invite local inspector … [A.] for interrogation.
Witness [A.] was invited to the hearing before [the Commission].
In reply to [the applicant’s lawyer’s] questions, [A.] stated:
– Having received a complaint from an elderly woman named [N.] …that Jehovah’s Witnesses had come to her home and disturbed her, I went to her house and saw religious books on the table but [the Jehovah’s Witnesses] stopped talking when they saw me.
– [N.] has complained three times, she indicated that she had been invited to gatherings several times but she had refused, after which they came again to persuade her.
– [The applicant] and [A.H.] had disturbed the person’s peace.
– According to [N.] [A.H.] and [the applicant] had taken her to gatherings several times but she had then not wished to participate in them and every time they invited her again she became embarrassed and invited them in.
The members of the [Commission] did not ask any questions.
[The Commission] proceeded to make a decision concerning the administrative offence.
Decided – to impose a fine of 1,000 (one thousand) drams on [the applicant] under Article 206 § 2 of the [CAO].”
On 13 May 2013 the applicant appealed against the decision of 2 April 2013 before the NKR Administrative Court.
By judgment of 24 June 2013 the Administrative Court declared the Commission’s decision of 2 April 2013 null and void on the grounds that it had lacked proper reasoning. The relevant parts of the judgment read as follows:
“It follows from [the Commission’s decision of 2 April 2013] that it has been considered as established that the applicant had breached the rules for organising and conducting religious assemblies, rallies, marches and other worship rituals whereas it is not clear from the aforementioned decision by which act of hers the applicant committed [the offence in question].
Since it is not clear from the aforementioned decision … which rules for organising and conducting religious assemblies, rallies, marches and other worship rituals the applicant has specifically violated … [the Commission’s decision] … has imposed an obviously unlawful obligation on the applicant …”
The Stepanakert Mayor’s Office lodged an appeal.
On 31 October 2013 the NKR Administrative Court of Appeal granted the appeal and upheld the Commission’s decision of 2 April 2013 on the grounds that, inter alia, Jehovah’s Witnesses, not being members of a religious organisation registered in the NKR, were not allowed to operate on its territory.
The applicant lodged an appeal on points of law.
On 13 December 2013 the NKR Supreme Court declared the applicant’s appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
Article 26 of the Constitution of the NKR reads as follows:
“1. Everyone shall have the right to the freedom of thought, conscience and religion.
2. The expression of the freedom of thought, conscience and religion may be restricted only by law on the grounds set out in Article 52 of the Constitution.
3. The freedom of the activity of religious organisations operating in accordance with the law is guaranteed.”
Article 206 § 3 of the NKR Code of Administrative Offences provides that violation of the legislation on religious association is punishable by a fine from thirty percent up to the full minimum salary tariff. The same provision provides that a violation of the legislation on religious association may take the following forms: evasion by the leaders of religious associations of registration of the given association with state governance bodies; breaching the rules set out by the law for organising and holding religious gatherings, marches and other worship rituals; and organisation and holding by religious ministers and members of religious associations of special child and adolescent gatherings, as well as other groups or gatherings which are not connected with labour, literature and worship rituals.
COMPLAINTS
The applicant complains under Article 9 of the Convention that the imposition of an administrative sanction on her for a peaceful discussion of a religious text constituted an unlawful and disproportionate interference with her right to freedom of religion.
Relying on Article 14 of the Convention read in conjunction with Article 9, the applicant submits that she suffered discrimination on the grounds of her religion as she received less favourable treatment than the members of the Armenian Apostolic Church and members of registered religious associations.
QUESTIONS TO THE PARTIES
1. Does Armenia have jurisdiction over the matters complained of, within the meaning of Article 1 of the Convention (see Muradyan v. Armenia, no. 11275/07, §§ 126 and 127, 24 November 2016)?
2. Did the imposition of an administrative sanction on the applicant by the authorities of Nagorno Karabakh constitute an interference with the applicant’s freedom of religion guaranteed by Article 9 of the Convention? If so, is the interference justified in terms of Article 9 § 2 of the Convention?
3. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 9?
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