Jehovah’s Witnesses are entitled to preach their religion and distribute their books. Illegal detention
JUDGMENT
Nasirov and others v, Azerbaijan 20.02.2020 (no. 58717/10)
SUMMARY
The applicants are nationals of Azerbaijan and Jehovah’s Witnesses. All the applicants were transferred to police stations after attempting to preach door to door on their religion, and were held administratively without official registration for at least 3 hours because of distributing religious books. The Domestic Courts ordered the return of the confiscated books but only for their own internal use.
Article 5
The Court has held that Article 5 § 1 is a fundamental principle and that no arbitrary detention can be compatible so that deprivation of liberty can be lawful under domestic law but nonetheless arbitrary and therefore contrary to the law. Contract.
The Court found that the applicants’ detention was not recorded, served no superior purpose such as ensuring that the case was properly examined or that a sentence be imposed, and therefore held that there had been a violation of Article 5 of the Convention.
Article 9
The Court has held that this aspect of the right enshrined in Article 9 § 1 to the right to freedom of religion and to change of religion or belief is absolute and unconditional.
In the present case, it found that the rulings of the domestic courts were contradictory to the content of the books, and found that the domestic courts had not produced or examined evidence proving inappropriate methods of conversion by members of the Jehovah’s Witness community. It accordingly held that the interference with the seizure of the books at issue was not ‘lawful’ within the meaning of Article 9 § 2 of the Convention.
PROVISIONS
Article 5§1
Article 9
PRINCIPAL FACTS
The applicants, Famil Zakir oglu Nasirov, Amina Talat gizi Mammadova, Gulnaz Mahammadali gizi
Hasanova, Salatin Ali gızı Iskandarova, Shafiga Mahammad gizi Mammadova, Rahima Amikishi gizi
Huseynova, and Aygul Novruz gizi Nasirova, are Azerbaijani nationals who were born in 1984, 1952,
1962, 1951, 1940, 1963, and 1984 and live in Baku, Lankaran and Gadabay (all in Azerbaijan).
The case concerned complaints of interferences with their rights while they had been preaching as
Jehovah’s Witnesses.
All the applicants were taken to police stations after they had preached door to door in three
separate incidents in 2010: the first two applicants in March 2010 in Baku; the third, fourth and fifth
in Aghstafa in April 2010; and the sixth and seventh in Sumgayit in May 2010.
All the applicants, except the second applicant, were fined 200 Azerbaijani manats (about EUR 200
at the time) by first-instance courts in those cities respectively for distributing literature which had
not been approved for import.
Their appeals, in which the applicants relied on various Articles of the European Convention on
Human Rights, had slightly different outcomes.
In the first applicant’s case the appeal court upheld the first-instance decision, finding that the books
he had been distributing had been allowed only for the internal purposes of the religious
organisation in question at its registered legal address. The appeal court sent the second applicant’s
case back for fresh consideration, after which the first-instance court again found her guilty but
discontinued the proceedings as time-barred without applying a penalty and ordered the return of
the confiscated books.
In the third, fourth and fifth applicants’ case, the appeal court ordered that all the books, except
“What does the Holy Book really teach?” be returned to the Jehovah’s Witnesses’ headquarters in
Baku. It held that the particular title they had been distributing had been banned by the Committee
and that the remaining ones were allowed only for internal use at the organisation’s headquarters.
The appeal court quashed the first-instance decisions in the sixth and seventh applicants’ case and
found that although they had possessed books banned by the Committee, the evidence had not proved that they had been distributing them. The court discontinued the proceedings and ordered the confiscated property to be returned to them.
The third, fourth, fifth, sixth and seventh applicants complained under Article 5 § 1 (right to liberty
and security) of the European Convention that their arrest and detention had been unlawful.
All the applicants complained of a violation of Article 9 (freedom of thought, conscience, and
religion) of the Convention.
THE DECISION OF THE COURT…
The Court reiterates that Article 5 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds.
The Court must first ascertain whether the applicants’ deprivation of liberty complied with the requirements of Article 5 § 1 and was free from arbitrariness. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person”. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention .
In the present case, the Court firstly notes that if the police officers believed that the applicants were committing an administrative offence, they were required to draw up an administrative offence report. The applicants could have been escorted to a police station if the administrative offence report could not be drawn up at the place where the offence had been discovered . However, the Government have not argued that in the circumstances of the case this was impossible, and no obstacles to drawing up the report on the spot may be discerned from the documents in the case file or from any domestic decisions.
Secondly, the Court observes that no records of administrative arrest were drawn up in respect of any of the applicants once they had been escorted to the police stations. Even assuming that the applicants’ deprivation of liberty did not exceed the three hours permitted by the domestic legislation as submitted by the Government, it appears that this deprivation of liberty was not documented at all and constituted unrecorded and unacknowledged detention, which, as the Court has consistently held, is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention.
Thirdly, the Court notes that under Article 398.1 of the CAO, administrative arrest could be applied only in exceptional cases, that is, where it was “necessary” in view of the specific situation objectively indicating that without such a measure it would be “impossible” to achieve the statutory goals such as ensuring the expedient and correct examination of the case or enforcing a penalty. However, neither the domestic authorities nor the Government before the Court provided any justification, namely that this was an “exceptional case” or that administrative arrest was “necessary for the prompt and proper examination” of the case, although these were essential elements pertaining to the legality of the deprivation of liberty.
The foregoing considerations are sufficient to enable the Court to conclude that the third, fourth, fifth, sixth and seventh applicants’ deprivation of liberty was unjustified, arbitrary and unnecessary irrespective of its duration.
It follows that there has been a violation of Article 5 § 1 in respect of the third, fourth, fifth, sixth and seventh applicants.
Article 9
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 the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions. 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.
The Court notes that it is undisputed by the parties that the measures taken following the distribution of religious literature by the applicants amounted to an interference with the exercise of their right to freedom of religion, as guaranteed by Article 9 of the Convention. The Court shares this view.
The Court notes that the Government relied on Article 300.0.2 of the CAO as a legal basis for the interference with the applicants’ right.
However, the Government’s argument in this respect is contradicted by the decisions of the domestic courts, which found that the books in the applicants’ possession had not been banned for import by the Committee and ordered their return to the applicants . Moreover, although the domestic courts’ decisions were contradictory in respect of the book entitled “What does the Holy Book really teach?”, the Court takes note of the letter of the Committee dated 1 July 2006 allowing the import of 1,000 copies of that book. The Government provided no explanation in respect of this contradiction. In these circumstances, the Court cannot but conclude that the books in question could not be considered to constitute literature of a religious nature imported without the consent of the relevant authority, and that their distribution could not have been prevented on the basis of Article 300.0.2 of the CAO.
The Court also cannot accept the reasoning of the domestic courts to the effect that the use of the religious literature in question was restricted to the internal purposes of the religious organisation at its registered legal address and that the books could not be distributed in public places to people who were not members of a Jehovah’s Witness congregation. In this connection, the Court notes that the domestic courts failed to rely on any provision of domestic law when they interpreted in such a restrictive way the scope of the use by believers of legally imported religious literature.
The Court further notes that, although some of the decisions of the domestic courts referred to the public disturbance and invasion of the privacy of others caused by the applicants’ practice of door‑to-door preaching (see paragraph 23 above), their findings were limited to a short statement and were not supported by convincing evidence in this respect. Moreover, leaving aside the question whether Azerbaijani law did provide for any offence of proselytism, which appears not to be the case, no evidence of improper methods of proselytising by members of the Jehovah’s Witnesses community was produced or examined in the domestic proceedings or referred to in the Government’s submissions before the Court.
The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not “prescribed by law” within the meaning of Article 9 § 2 of the Convention.
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.
There has accordingly been a violation of Article 9 of the Convention.
Just satisfaction: 103 euros (EUR) to the first applicant and EUR 96 to each of the third, fourth, and fifth applicants in respect of pecuniary damage; EUR 3,000 to each of the applicants in respect of non-pecuniary damage.
