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
=================================================
Friday 5 November 2021
AZERBAIJAN: Alternative service "not under discussion" despite latest ECtHR
decision
Despite another European Court of Human Rights (ECtHR) decision that
Azerbaijan violated the human rights of two more conscientious objectors,
Saadat Novruzova of the Presidential Administration's Human Rights
Protection Unit told Forum 18 that changing the law to introduce a civilian
alternative to compulsory military service "is not under discussion".
Azerbaijan committed to the Council of Europe to introduce an alternative
service by January 2003. The 7 October ECtHR decision reminded Azerbaijan
of a similar earlier decision that "calls in principle for legislative
action" to satisfy "the obligations incumbent on it of assuring .. the
right to benefit from the right to conscientious objection".
AZERBAIJAN: Alternative service "not under discussion" despite latest ECtHR
decision
By Felix Corley, Forum 18
Despite a further decision from the European Court of Human Rights (ECtHR)
in Strasbourg that Azerbaijan had violated the human rights of two
conscientious objectors, an adviser in the Presidential Administration's
Human Rights Protection Unit indicated that the regime has no plans to
introduce a civilian alternative to compulsory military service. Reminded
of Azerbaijan's commitment to the Council of Europe to introduce such a
civilian alternative service by January 2003, Saadat Novruzova responded:
"At the moment this is not under discussion." She declined to discuss the
latest ECtHR decision with Forum 18.
Lawyers who have taken cases to the ECtHR and human rights defenders have
repeatedly pointed out that Azerbaijan fails to take the corrective action
it is obliged to undertake – such as changing laws - in response to such
decisions to prevent the violations recurring. "It is easier a couple of
times a year to buy off those few complainants who manage to get to the
European Court than to change the well-established system that suits the
authorities," human rights defender Eldar Zeynalov told Forum 18 in March
(see below).
On 7 October, the ECtHR accepted Azerbaijan's admission that it had
violated the human rights of two Jehovah's Witness young men who had been
convicted in 2018 for refusing compulsory military service on grounds of
conscience. Both Emil Mehdiyev and Vahid Abilov had declared a willingness
to conduct an alternative civilian service. Both lost their appeals against
their suspended jail terms in Azerbaijan's Supreme Court before taking
their cases to Strasbourg. The ECtHR ordered that the victims be paid
compensation and costs (see below).
The total amount Azerbaijan is to pay each of the victims in compensation
and legal costs is 3,500 Euros (6,850 Azerbaijani Manats, 35,000 Norwegian
Kroner or 4,000 US Dollars).
Mehdiyev and Abilov welcomed the government's acknowledgment of a violation
and the award of compensation, but told the ECtHR in August that they were
dissatisfied that the regime has still not adopted a law introducing a
civilian alternative to compulsory military service for those unable to
serve on grounds of conscience (see below).
The ECtHR's October decision brings to seven the number of conscientious
objectors from Azerbaijan whose human rights the Strasbourg court has found
the regime violated and to whom it has had to pay compensation (see below).
In its decision, the ECtHR reminded Azerbaijan of comments it made in an
October 2019 decision in the cases of five other conscientious objectors.
It stressed that "the Court also points out that the question of adoption
of a law on alternative civilian service by Azerbaijan has already been
addressed by the Court". The October 2019 decision had noted that the case
"calls in principle for legislative action by the defending State in order
to satisfy, in conformity with the present decision, the obligations
incumbent on it of assuring the applicants and other persons in the same
situation the right to benefit from the right to conscientious objection"
(see below).
A Jehovah's Witness who has been following the cases told Forum 18 from
Baku that the community hopes the ECtHR decisions both in October 2019 and
October 2021 "will contribute to the early adoption of a law on alternative
service". However, they added: "So far we don't see any progress on
introducing a civilian alternative to military service" (see below).
Ahead of its accession to the Council of Europe in January 2001, Azerbaijan
promised "to adopt, within two years of accession, a law on alternative
service in compliance with European standards" and pardon all convicted
conscientious objectors. It failed to do so and since 2001 has continued to
arrest and prosecute conscientious objectors like Mehdiyev and Abilov (see
below).
Forum 18 was unable to reach Chingiz Asgarov, the government's
representative to the ECtHR. His phone went unanswered each time it called.
The latest decisions bring to 61 the number of known cases related to
violations of freedom of religion or belief that have concluded at the
ECtHR. In 39 cases the Court found violations or the regime admitted
violations. In a further 11 cases, the regime paid compensation while not
acknowledging violations (see below).
Six cases from Azerbaijan related to the regime's violations of freedom of
religion or belief – lodged by Muslims and Jehovah's Witnesses - are
known to remain at the Strasbourg court (see below).
On 20 September, the ECtHR asked the regime questions about the oldest
unresolved freedom of religion or belief case, lodged in 2012. This
concerns the refusal of the State Committee for Work with Religious
Organisations to re-register the Baku Jehovah's Witness community in the
round of compulsory re-registration in 2009 (see below).
Jehovah's Witnesses from Azerbaijan also have six freedom of religion or
belief cases pending with the UN Human Rights Committee. Four relate to
police raids on meetings for worship and two to speaking to others about
their beliefs.
"It is easier a couple of times a year to buy off those few complainants"
In line with Azerbaijan's legally-binding international human rights
obligations, the decisions of both the ECtHR and the United Nations (UN)
Human Rights Committee require the regime to change its laws and practices
so that freedom of religion and belief violations cannot recur
(
). Forum 18 is not
aware of any proposed government legal or other changes to meet this
obligation.
One lawyer argues that more must be done to achieve the fulfilment of ECtHR
decisions. "At present, the government offers only compensation for the
judgments of the European Court of Human Rights," the lawyer – who asked
not to be identified for fear of state reprisals – told Forum 18 in June
(
). "The Council of
Europe must launch enforcement mechanisms, as the judgment of the Court
alone is not enough for justice. Only the Court judgment together with an
enforcement mechanism can be fair."
"It is easier a couple of times a year to buy off those few complainants
who manage to get to the European Court than to change the well-established
system that suits the authorities," Eldar Zeynalov of the Human Rights
Centre of Azerbaijan told Forum 18 from Baku in March
(
). "And if it is
possible to do this without bringing the essence of the problem to public
consideration at all, this is ideal for the government. And this is exactly
what happens when concluding friendly settlements or when the ECtHR accepts
a unilateral declaration from the government."
Baku lawyer Asabali Mustafayev, who has taken freedom of religion or belief
cases to the ECtHR, commented: "Demands on the government from outside are
too weak," he told Forum 18 in June
(
). "The Council of
Europe and other international organisations are not insistent enough, so
the government gets away with flouting [its obligations]".
Council of Europe obligation ignored
Military service of 18 months (12 months for those with higher education)
is compulsory for all young men. Article 76, Part 2 of Azerbaijan's
Constitution 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." However, no mechanism exists
to enact this provision.
Ahead of its accession to the Council of Europe in January 2001, Azerbaijan
promised
(
) "to adopt,
within two years of accession, a law on alternative service in compliance
with European standards and, in the meantime, to pardon all conscientious
objectors presently serving prison terms or serving in disciplinary
battalions, allowing them instead to choose (when the law on alternative
service has come into force) to perform non-armed military service or
alternative Civilian service".
Azerbaijan has never done this, and conscientious objectors to military
service have been repeatedly prosecuted and even jailed under Criminal Code
Article 321.1. This states
(
): "Evasion without
lawful grounds of call-up to military service or of mobilisation, with the
purpose of evading serving in the military, is punishable by imprisonment
for up to two years [in peacetime]".
United Nations (UN) human rights bodies, as well as the Council of Europe's
Venice Commission and its European Commission against Racism and
Intolerance (ECRI), have repeatedly criticised Azerbaijan's failure to
introduce a civilian alternative to compulsory military service.
In November 2016 Concluding Observations on Azerbaijan's report to the UN
Human Rights Committee (CCPR/C/AZE/CO/4), the Committee again expressed
concern about the lack of a civilian alternative to military service
(
).
The Committee stated that Azerbaijan "should adopt without delay the
legislation necessary to give effect in practice to the constitutionally
recognized right to conscientious objection to military service, without
limitation on the category of conscientiously held beliefs. Moreover, it
should provide for alternative service of a civilian nature for
conscientious objectors and repeal all sanctions against them."
In March 2016, ECRI again condemned Azerbaijan's violations of freedom of
religion or belief
(
),
and other human rights, and noted the continuing sentencing of
conscientious objectors. "ECRI strongly recommends that the authorities
fulfil the undertaking given upon accession to the Council of Europe to
enact legislation on alternatives to military service."
The government claimed in its response to ECRI that "due to the war with
Armenia, Azerbaijan has not been able to enact a separate law on
alternative service".
On 3 April 2019, in its Conclusions on Azerbaijan's follow-up to the March
2016 report
(
),
ECRI declared: "ECRI notes that the Azerbaijani authorities have not taken
any initiative to enact legislation on alternatives to military service.
ECRI therefore considers that this recommendation has not been
implemented."
Forum 18 asked the Human Rights Ombudsperson's Office in Baku in writing on
17 December 2018 (resent on 30 April 2019) what action (if any) it had
taken to defend the rights of convicted conscientious objectors Mehdiyev
and Abilov. It also asked what action (if any) it had taken to push for the
adoption of a law to allow for those who have conscientious objections to
military service to perform a civilian alternative service, which
Azerbaijan committed to introduce by 2003. Forum 18 received no reply from
the Ombudsperson's Office
(
).
Law to introduce alternative civilian service "not under discussion"
Saadat Novruzova, an adviser in the Presidential Administration's Human
Rights Protection Unit, declined to discuss the ECtHR's decision in the
cases of Mehdiyev and Abilov with Forum 18 on 3 November 2021. Reminded of
Azerbaijan's commitment to introduce a civilian alternative to military
service by January 2003 and asked about whether any law is being prepared
nearly two decades later, she responded: "At the moment this is not under
discussion." She then put the phone down
The telephone of the Head of the Presidential Administration's Human Rights
Protection Unit, Habib Abdullayev, went unanswered each time Forum 18
called between 3 and 5 November.
On 30 March 2020, Siyavush Novruzov, a senior ruling party politician, made
a brief remark to parliament, the Milli Majlis, that an Alternative Service
Law should be adopted. His phone went unanswered each time Forum 18 called
between 3 and 5 November 2021.
"So far we don't see any progress on introducing a civilian alternative to
military service," a Jehovah's Witness who has been following the cases
told Forum 18 from Baku on 5 November. "But, on the other hand, we are glad
that at the moment no one is being persecuted because of their refusal to
serve in the army."
The Jehovah's Witness added that the community hopes the ECtHR decisions
both in October 2019 and October 2021 "will contribute to the early
adoption of a law on alternative service".
The Jehovah's Witness noted that from time to time young men are summoned
to the State Service on Mobilisation and Conscription, but "after they
explain their religious position they are usually required to get medical
examinations but not conscripted into the military".
About ten Jehovah's Witness young men have refused military service and
offered to do an alternative civilian service since 2015. Many of these
have faced Prosecutor's Office investigations and some have been barred
from leaving the country
(
). However, no criminal
cases have been instituted.
ECtHR: Azerbaijan violated conscientious objectors' human rights
On 7 October, the European Court of Human Rights (ECtHR) in Strasbourg
issued a decision that Azerbaijan had violated the human rights of two
Jehovah's Witness young men, Emil Mehdiyev and Vahid Abilov, who had been
convicted in 2018 for refusing compulsory military service on grounds of
conscience.
Mehdiyev refused to perform military service on grounds of conscience and
offered to do an alternative civilian service (which does not exist in
Azerbaijan). In July 2018, Barda District Court convicted him and handed
down a one-year suspended prison term, and required that he live under
probation for one year
(
). Ganca Appeal Court
rejected his appeal in October 2018
(
). The Supreme Court
rejected his final appeal in April 2019
(
).
Abilov refused to perform military service on grounds of conscience and
offered to do an alternative civilian service (which does not exist in
Azerbaijan). In September 2018, Agdam District Court found him guilty and
sentenced him to a one-year suspended prison term
(
). Ganca Appeal Court
rejected his appeal in October 2018
(
). The Supreme Court
rejected his final appeal in April 2019
(
).
Mehdiyev lodged his case with the ECtHR on 7 October 2019 (Application No.
52773/19
(
)), and Vahid Abilov on
17 October 2019 (Application No. 54768/19
(
)). Given the similarity of the
violation, the ECtHR considered the cases together. The ECtHR asked the
regime questions
(
) about both
cases on 1 March 2021.
Azerbaijan responded to the court on 5 July 2021 offering a "unilateral
declaration" that it had violated Mehdiyev and Abilov's human rights and
offering to pay compensation and legal costs to the two men. The Strasbourg
court accepted this in its 7 October decision.
The ECtHR ordered that Azerbaijan is to pay each of the victims in
compensation and legal costs 3,500 Euros (6,850 Azerbaijani Manats, 35,000
Norwegian Kroner or 4,000 US Dollars).
Mehdiyev and Abilov welcomed the government's acknowledgment of a violation
and the award of compensation, but wrote to the ECtHR on 10 August that
they were dissatisfied that the regime has still not adopted a law
introducing a civilian alternative to compulsory military service for those
unable to serve on grounds of conscience.
In its decision, the ECtHR reminded the regime that it has "established
clear and extensive case-law in respect of Azerbaijan relating to the
criminal conviction for refusing to perform military service on religious
grounds", pointing to the October 2019 decision that the regime had
violated the human rights of five conscientious objectors.
The decision added that "the Court also points out that the question of
adoption of a law on alternative civilian service by Azerbaijan has already
been addressed by the Court" in the October 2019 decision.
ECtHR's October 2019 decision in favour of five conscientious objectors
On 17 October 2019, the ECtHR found in favour of five Jehovah's Witnesses
punished through the courts between 2007 and 2013 for refusing compulsory
military service on grounds of conscience. Four of them had been jailed,
while the fifth had been given a suspended prison sentence and a fine. The
decision covered four cases (one involving two applicants)
(
), which the Court
considered together.
In its decision, the European Court found that Azerbaijan had violated the
rights of all five. It specified compensation and legal expenses totalling
38,269 Euros payable to the applicants.
Moreover, the Court "observes that the present case casts light on a
problem linked to the absence of an alternative service law in Azerbaijan".
It pointed out that this violates both Azerbaijan's commitments on joining
the Council of Europe and Article 76 of Azerbaijan's Constitution.
"In these circumstances," the decision noted, "the Court considers it
useful to stress that such a situation calls in principle for legislative
action by the defending State in order to satisfy, in conformity with the
present decision, the obligations incumbent on it of assuring the
applicants and other persons in the same situation the right to benefit
from the right to conscientious objection."
The Committee of Ministers of the Council of Europe is conducting "enhanced
supervision" of the implementation of the October 2019 decision
(
). "An enhanced procedure is
used for cases requiring urgent individual measures or revealing important
structural problems," it explains
(
).
Six known cases awaiting ECtHR decisions
The ECtHR in Strasbourg has already completed 61 cases from Azerbaijan
submitted since 2004 related to violations of freedom of religion or belief
and inter-related rights
(
).
Of these 61 completed cases:
- 19 ended in findings of violations and awards of compensation;
- 19 were closed after Azerbaijan admitted violations and offered
compensation in a "unilateral declaration";
- 12 were friendly settlements, where the regime agreed to pay compensation
(in 1 case it also admitted violations);
- 11 were dismissed or withdrawn (one following the death of the
applicant).
Six ECtHR cases related to the regime's violations of freedom of religion
or belief are known to remain. The cases – submitted between 2012 and
2020 - cover a wide range of violations. Of these, 4 were lodged by Muslims
and 2 by Jehovah's Witnesses. Some cases cover more than one violation,
such as police seizing religious literature during a raid on a meeting for
worship.
In approximate reverse chronological order of violation they are:
- State censorship of religious literature (1 case involving 1 individual
applicant)
- Raids on meetings for worship (2 cases involving 5 individual applicants
and 1 community)
- Jailed for leading prayers (1 case involving 1 individual applicant)
- Unlawful house search (1 case involving 1 individual applicant)
- Registration denial (1 case involving 2 individual applicants and 1
community)
Details of all six cases are given below.
ECtHR: State censorship of religious literature
Miriyev v. Azerbaijan (Application No. 1717/20).
In February 2018, the State Committee for Work with Religious Organisations
on theological grounds banned the publication and distribution of the book
(
) "Things Not Existing
in Islam" by Muslim theologian Elshad Miri (also known as Miriyev).
Repeated legal appeals against the ban failed
(
). After failing on 20
December 2019 in the Supreme Court to overturn the ban, Miri lodged a case
in the ECtHR
(
).
The ECtHR has not yet asked the regime questions about the case.
ECtHR: Raids on meetings for worship
1) Rafiyev v. Azerbaijan (Application No. 81028/17
(
)).
In March 2017, police raided a home in Quba where Muslims who study Said
Nursi's works were meeting and seized religious literature. Almost all of
those present were fined in March 2017, including Vuqar Rafiyev
(
).
The ECtHR asked the regime questions
(
) about the case on 6 September
2018.
2) Niftaliyev and Others v. Azerbaijan (Application No. 561/12
(
)).
In June 2011, police raided a Jehovah's Witness meeting for worship in
Yegana Gahramanova's home in Ganca. A court fined Gahramanova, as well as
Rashad Niftaliyev, Rana Sadigova and Teymur Valiyev (though his fine was
reduced to a warning because of his disability)
(
) for an "illegal"
religious meeting. The Baku Jehovah's Witness community joined the
application to the ECtHR.
The ECtHR asked the regime questions
(
) about the case on 6 July
2017.
The ECtHR received all submissions from both parties by 7 February 2018,
and the case is awaiting an ECtHR decision.
ECtHR: Jailed for leading prayers
Babayev v. Azerbaijan (Application No. 34015/17
(
)).
Police arrested Shia Muslim Imam Sardar Babayev in February 2017 and a
court jailed him in July 2017 for three years for leading prayers in a
mosque having gained his religious education outside Azerbaijan
(
). He initially brought
the case to challenge his pre-trial detention, but his lawyer updated the
case after his jail sentence was finally upheld on 13 February 2018
(
).
The ECtHR asked the regime questions
(
) about the case on 4 September
2018.
"The government gave its comments, they were sent to us and we in turn gave
our comments," his lawyer Javad Javadov told Forum 18 in March 2020
(
). He said they are now
waiting for the ECtHR to give its decision.
ECtHR: Unlawful house search
Miragayev v. Azerbaijan (Application No. 29550/14
(
)).
In May 2012 police and the then-National Security Ministry (NSM) secret
police raided Zeka Miragayev's Baku home
(
). Police confiscated
30 copies of the Koran, 24 other books (including some by Said Nursi), a
computer, and a small sum of money. After repeated failures of legal
challenges to the raid and confiscations
(
), the ECtHR
application concerns the unlawful search of the applicant's flat. Miragayev
also notes that he was not duly notified of a hearing before the Supreme
Court.
The ECtHR asked the regime questions
(
) about the case on 24 October
2018.
ECtHR: Registration denial
Moroz and Others v. Azerbaijan (Application No. 49264/12).
Baku's Jehovah's Witness community was first registered in December 1999
and gained the compulsory re-registration in February 2002. It applied for
another compulsory re-registration in November 2009
(
), but the State
Committee rejected the re-registration application in February 2010
(
), after which the
community went to court. After nearly two years from 2010 of unsuccessful
legal challenges to the State Committee
(
), in February 2012
Jehovah's Witnesses finally lost their case in the Supreme Court
(
).
Leonid Moroz, another community member, and the Baku community itself then
lodged their ECtHR application on 1 October 2012.
The ECtHR asked the regime questions
(
) about the case on 20
September 2021. (END)
Full reports on freedom of thought, conscience and belief in Azerbaijan
(
)
For more background, see Forum 18's Azerbaijan religious freedom survey
(
)
Forum 18's compilation of Organisation for Security and Co-operation in
Europe (OSCE) freedom of religion or belief commitments
(
)
Follow us on Twitter @Forum_18
(
)
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(
)
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© Forum 18 News Service. All rights reserved. ISSN 1504-2855.
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