Communicated on 9 February 2017

FIFTH SECTION

Application no. 41792/15 Kamran MIRZAYEV against Azerbaijan lodged on 21 August 2015

STATEMENT OF FACTS

The applicant, Mr Kamran Mirzayev , is an Azerbaijani national, who was born in 1994 and lives in Goychay . He is represented before the Court by Mr S.H. Brady Heath, Mr A. Carbonneau and Mr J. Wise, lawyers practising in Vantaa (Finland), Paris and Tbilisi respectively.

The applicant was baptised as a Jehovah ’ s Witness on 16 December 2012.

In August 2012 the applicant received an order from the Goychay District Service for Mobilisation and Conscription ( Göyçay rayon Səfərbərlik və hərbi xidmətə çağırış şöbəsi – hereinafter “the Mobilisation Service” ) to report on 23 August 2012 for military service.

The applicant went to the Mobilisation Service on 23 August 2012. He explained that he was one of the Jehovah ’ s Witnesses and refused military service on the grounds of his religious conscience. After a medical examination he was permitted to leave.

In September 2012 the applicant received another order from the Mobilisation Service. He went to the Mobilisation Service ’ s premises and after reiterating his refusal of military service on the grounds of his religious conscience was permitted to leave.

On 6 October 2012 the applicant was summoned to report for military service on 12 October 2012. He made a written statement that he could not take in hands any armament and refused to perform military service even if he faced detention, and submitted it to the Head of the Mobilisation Service. Subsequently, he did not report on the specified date.

During the period between October and December 2012 the applicant was summoned several times by Goychay city prosecutor ’ s office where he was told that he would be charged for refusing military service.

On an unspecified date criminal proceedings were instituted against the applicant under Article 321.1 of the Criminal Code (refusal to perform military service).

On 12 March 2013 the Goychay District Court found the applicant guilty and sentenced him to nine months ’ imprisonment. The applicant was immediately arrested in the courtroom.

The first-instance court observed that the relevant provisions of the Constitution providing for alternative service could be applicable only after the law stipulating conditions of such a service has been adopted and in the absence of this law the applicant ’ s refusal to perform military service constitutes a criminal act. The first-instance court further observed that after the applicant had stated to the relevant authorities that his religious beliefs do not let him take armament in hands, he was informed that he could perform military service without dealing with armament. Eventually, the applicant did not apply for the alternative service but instead refused performing military service by stating in writing that he would refrain from military service even if he faced detention.

On an unspecified date the applicant lodged an appeal against the decision of the first instance to the Sheki Court of Appeal.

In his written submission the applicant stated that he had never escaped from the relevant authorities, did not have an intention of evading his obligation but asked for an alternative service. Relying on the Constitution, the Convention, the Court ’ s case-law and several other international instruments the applicant submitted that he had legitimate grounds to refuse the military service and his actions had not constituted a criminal act.

On 15 May 2013 the Court of Appeal dismissed the appeal and upheld the judgment of the first instance court. Having considered the circumstances of the case, namely, the applicant ’ s deliberate refusal to perform military service even if he might face detention, and his failure to prove that the refusal had been indeed caused by religious beliefs, the appellate court decided that the lower court ’ s judgment was reasoned and correct.

On an unspecified date the applicant lodged a cassation appeal against the decision of the appellate court, restating his appeal submission.

On 24 February 2015 the Supreme Court dismissed the cassation appeal and upheld the decision of 15 May 2013. The Supreme Court held, inter alia, that the provisions of the Constitution providing for an alternative service were conditioned by the relevant legislation which had not yet been passed. The Supreme Court also stated that according to the relevant law an alternative to military service was available during peacetime whereas the Republic of Azerbaijan continued to be in a state of war with the Republic of Armenia.

COMPLAINT

The applicant complains that his criminal conviction for refusing to serve in the army constituted a violation of Article 9 of the Convention .

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s freedom of thought, conscience, or religion, within the meaning of Article 9 § 1 of the Convention, on account of the applicant ’ s criminal conviction for refusing to perform his military service? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?