FORUM 18 NEWS SERVICE, Oslo, Norway
The right to believe, to worship and witness
The right to change one’s belief or religion
The right to join together and express one’s belief
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Thursday 10 February 2005
AZERBAIJAN: SUPREME COURT CLAIMS CONSTITUTIONAL RIGHT DOESN’T EXIST
Azerbaijan’s Supreme Court has decided that a Jehovah’s Witness can be
forced to do military service – even though the constitution claims
that “alternative service instead of regular army service is
permitted.” The court argued that, as no law on civilian alternative
service exists, the appeal of Mahir Bagirov must be rejected. Azerbaijan
has broken a promise to the Council of Europe to introduce a law by January
2003. Sayad Kirimov, deputy head of parliament’s administrative and
military law department, told Forum 18 News Service that “the Supreme
Court can’t use the absence of a law to deprive someone of their
constitutional rights.” Bagirov’s lawyer told Forum 18 that the ruling
will be challenged at the European Court of Human Rights. After this
Supreme Court decision, Bagirov “expects to be arrested by the
military police and disappear into a military barracks where he anticipates
being subjected to brutal treatment as an alleged deserter.”
AZERBAIJAN: SUPREME COURT CLAIMS CONSTITUTIONAL RIGHT DOESN’T EXIST
By Felix Corley, Forum 18 News Service
Despite a provision in the constitution guaranteeing the right to perform
alternative service for those unable to serve in the army on grounds of
conscience, Azerbaijan’s Supreme Court on 4 February failed to protect this
right in the case of Mahir Bagirov, a Jehovah’s Witness. The court argued
that the lack of a law on alternative service meant this right does not
exist. “I don’t know the exact details of this case, but it’s my
subjective view that the court took the wrong decision,” Sayad
Kirimov, deputy head of parliament’s administrative and military law
department, told Forum 18 News Service from the capital Baku on 9 February.
“The constitution has direct legal force and the Supreme Court can’t
use the absence of a law to deprive someone of their constitutional
rights.”
Article 76 (2) of the constitution states: “If beliefs of citizens
come into conflict with service in the army then in some cases envisaged by
legislation alternative service instead of regular army service is
permitted.”
Also condemning the court ruling was Eldar Zeynalov, the head of the
Baku-based Human Rights Centre of Azerbaijan who has been closely following
Bagirov’s case. “This was an illegal decision which violated the
constitution, the spirit of the law and international law to which
Azerbaijan is a party,” he told Forum 18 from Baku on 9 February.
“The Supreme Court simply doesn’t want to take responsibility for a
decision that will establish a precedent.”
British lawyer Richard Daniel, who represented Bagirov at the Supreme
Court, told Forum 18 on 8 February that Bagirov intends to challenge the
ruling at the European Court of Human Rights in Strasbourg. He now fears
for his client in the wake of the rejection of his final appeal. “He
expects to be arrested by the military police and disappear into a military
barracks where he anticipates being subjected to brutal treatment as an
alleged deserter.”
Adil Gadjiev, an official at the ombudsman’s office in Baku, refused to
comment on the court ruling, but said his office would be prepared to try
to help Bagirov if he seeks such help. “We didn’t allow his detention
by the military police and forcible recruitment,” he told Forum 18
from Baku on 9 February, though he could not specify what help the office
could offer. Gadjiev declined to say what young men whose faith does not
permit them to fight should now do to establish their constitutional right
not to serve in the armed forces.
Bagirov, a 28-year-old doctor who is married with a young daughter, started
attending Jehovah’s Witness meetings in 1998 and was baptised in April
1999. Since then he has tried in vain to be removed from the military
reserve to which he had automatically been inducted as a medical graduate
and for which he had taken the oath of allegiance. “As a result of his
study of the Bible, in good conscience he felt that he could no longer take
up arms or support the military in any way,” Daniel told Forum 18.
“Therefore, he sought from the Ministry of Defence removal of his name
from the list of reserve officers and registration as a conscientious
objector. The Ministry have adamantly refused to comply.”
Bagirov was most recently called up in May 2004 and ordered to report to a
military unit. On 9 June he lodged a suit at Baku’s Khatai district court,
arguing that the insistence that he perform military service was illegal
and in violation of Article 76 part 2 of the constitution, which declares:
“If the beliefs of citizens come into conflict with service in the
army then in some cases envisaged by law alternative service instead of
regular army service is permitted.” After the appeal court rejected
his suit on 16 September (see F18News 6 October 2004
), Bagirov took his case
to the Supreme Court, which heard the case on 30 December and 3 February.
“The Military Commissariat have totally misconstrued or misrepresented
two matters of law,” Bagirov’s lawyer, Richard Daniel, complained.
“Reduced to simplicity, they say that as there is no law on
alternative civilian service yet in place in Azerbaijan, there can be no
right of conscientious objection. The Court has ignored international
agreements entered into by Azerbaijan which make clear that the right to
conscientious objection is not dependent on the provision of alternative
service.” Daniel also complains that the court’s interpretation of
“religious ministers” was too narrow and excluded leaders of
“non-traditional” faiths such as the Jehovah’s Witnesses, who
have different systems of leadership to faiths like the Islamic or Orthodox
communities.
Zeynalov Human Rights Centre of Azerbaijan argues that, far from showing
the independence of the court, the ruling in Bagirov’s case shows that the
judges are “totally dependent” on public opinion and the view of
the government. “Government pressure can’t take the form of a direct
instruction to the judge, but ‘telephone law’ remains the norm and the
judge in this case was possibly ‘advised’ not to take this responsibility
of establishing a precedent that individuals can opt for alternative
service.”
Zeynalov points out that the authorities have already obstructed the
activity of the Jehovah’s Witnesses, granting registration as a religious
community only after a long battle, trying to restrict their activity and
preventing foreign Jehovah’s Witness leaders coming to serve the community
in Azerbaijan. Zeynalov contrasted this with the arrival of foreign
citizens to lead the Russian Orthodox, Catholic and Lutheran communities.
As part of its commitments on joining the Council of Europe, Azerbaijan
should have adopted a law on alternative service by January 2003, but
failed to do so. “This was one of its commitments and Azerbaijan
failed to meet it,” Mats Lindberg, the Council of Europe’s
representative in Baku, told Forum 18 on 9 February. “We hope
parliament here will adopt this law soon. The Council of Europe gave its
expert advice on the draft last September.”
However, Kirimov of the parliament confirmed that there has been no
progress since the first reading last year. “This issue has been hotly
debated, in parliament, in parliamentary commissions and in the
media,” he told Forum 18. Although insisting that as an obligation,
the alternative service law “will be adopted”, Kirimov maintained
that drafting the law was no easy matter. “There are many questions
needing decisive answers so that disputes won’t arise on implementation.
And checking the faith and conscience of an individual will be difficult.
Does a person really follow these beliefs or is he just trying to evade
service?”
Zeynalov chided the Strasbourg-based Council of Europe for failing to
punish Azerbaijan for missing the deadline for this and many other
commitments. “The Parliamentary Assembly didn’t react
adequately,” he told Forum 18. “That’s the problem. There is no
pressure from Strasbourg.” He maintains that parliament will defer any
decisions until after the next elections, due in November. “Nothing
will happen this year,” he insisted. “They will find new
arguments and excuses to postpone and postpone adopting an alternative
service law. The beginning of 2006 is my most optimistic forecast for
adoption.”
However, Krzysztof Zyman, the official responsible for the South Caucasus
at the Council of Europe secretariat, rejects suggestions that the
organisation has not done enough to hold Azerbaijan to its commitments.
“The failure to adopt an alternative service law is the reason the
Council of Europe is maintaining the pressure,” he told Forum 18 from
Strasbourg on 10 February. “The issue is raised regularly within the
framework of the monitoring of commitments by the Committee of Ministers. I
am aware that deadlines are not always met, but we expect Azerbaijan to
meet this commitment.”
No other conscientious objectors are known to be challenging forcible
conscription at present. In the past, a handful of Jehovah’s Witnesses and
other objectors have won the right not to serve through the courts or with
the help of the ombudsman’s office, but without establishing a legal
precedent.
Daniel complained that the legal cases Bagirov has been forced to undergo
to protect his constitutional right have been “very time-consuming for
him and very expensive”. “The amount of time off work and the
harassment by the military have meant that, although his professor is well
disposed to him, he has had to resign his post to concentrate on the legal
battle.”
Daniel believes Azerbaijan’s army is not yet ready to allow young men to do
alternative service. “The military reject the concept that they are in
breach of their undertaking to the Council of Europe on the basis that
Azerbaijan is a sovereign state, the military are operating at 67 per cent
of resources and ‘there is a war going on’,” he told Forum 18,
referring to Azerbaijan’s unresolved conflict with local Armenians in the
enclave of Nagorno-Karabakh.
For more background information see Forum 18’s Azerbaijan religious freedom
survey at
A printer-friendly map of Azerbaijan is available at
las/index.html?Parent=asia&Rootmap=azerba
(END)
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