Communicated on 10 November 2016

FIFTH SECTION

Application no. 76127/13 Fakhraddin MIRZAYEV against Azerbaijan lodged on 3 December 2013

STATEMENT OF FACTS

The applicant, Mr Fakhraddin Mirzayev , is an Azerbaijani national who was born in 1993 and lives in Ganja . He is represented before the Court by Mr R. Cook, Mr J. Wise and Mr A. Carbonneau , lawyers practising in London, Paris and Tbilisi respectively.

On an unspecified date, the applicant was baptised as a Jehovah ’ s Witness. He had regularly attended the religious services of Jehovah ’ s Witnesses.

On 6 March 2012 and again on 27 April 2012 the applicant received an order to report for military service from the Ganja Kapaz District Service for Mobilisation and Conscription ( Gəncə şəhəri Kəpəz rayon Səfərbərlik və hərbi xidmətə çağırış şöbəsi – hereinafter “the Mobilisation Service” ) .

On 24 April 2012 the applicant wrote to the Mobilisation Service to request alternative civilian service and an exemption from military service on the grounds of his religion and beliefs.

On 26 April 2012 the applicant received a letter from the Mobilisation Service informing him that according to domestic legislation the provisions of the Law on the Basis of Recruitment concerning alternative service had been suspended until a law enacting provisions for such service had been passed.

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 25 September 2012 the Ganja Kapaz District Court found the applicant guilty and sentenced him to one year in prison. The applicant was immediately arrested in the courtroom. The first-instance court observed that the relevant provisions of the Constitution providing for alternative service did not have a mandatory character and could be applicable only to clergymen ( dini xadim ). However , the accused was only a member of a religious community, not a clergyman holding an official position or a student at a religious institution.

On an unspecified date the applicant lodged an appeal. In particular, he complained that he had never evaded the relevant authorities. He had also had no intention of avoiding his obligations but had asked for an alternative to military service. Relying on the Constitution, the Convention, the Court ’ s case-law and several other international instruments, the applicant submitted that he had had legitimate grounds to refuse military service and that his actions had not constituted a criminal act.

On 21 November 2012 the Court of Appeal dismissed the appeal.

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

On 4 June 2013 the Supreme Court dismissed the appeal and upheld the decision of 21 November 2012.

In the meantime, on 22 May 2013 the applicant was released on the basis of an amnesty act.

COMPLAINTS

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

QUESTIONS 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 his refusal to perform his military service? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?