Communicated on 10 November 2016

FIFTH SECTION

Application no. 45823/11 Farid MAMMADOV against Azerbaijan lodged on 18 July 2011

STATEMENT OF FACTS

The applicant, Mr Farid Mammadov , is an Azerbaijani national who was born in 1987 and lives in Baku. He is represented before the Court by Mr R. Cook, Mr A. Carbonneau and Mr J. Wise, lawyers practising in London, Montreal and Tbilisi respectively.

The facts of the case, as submitted by the applicant, may be summarised as follows.

Following two years of study, the applicant was baptised as a Jehovah ’ s Witness on 24 July 2004. He had regularly attended the weekly religious services of Jehovah ’ s Witnesses in Baku and participated in the public ministry for which Jehovah ’ s Witnesses are well known.

In February 2006 the applicant received an order to report for military service from the Nasimi District Military Commission.

On 31 March 2006 the applicant wrote to the Military Commissioner to request an exemption from military service and be allowed to carry out an alternative civilian service on the grounds of his religion and beliefs. During the course of the following eighteen months the applicant corresponded at length with the military authorities. However, he was neither granted an exemption nor summoned for military service.

On 20 May 2010, the Nasimi District Prosecutor ’ s Office instituted criminal proceedings against the applicant under Article 321.1 of the Criminal Code (refusal to perform military service).

On 16 July 2010 the Nasimi District Court found the applicant guilty and sentenced him to nine months ’ imprisonment. The first-instance court relied on the decision of the Plenum of the Supreme Court whereby the term “clergyman” ( dini xadim ) had been defined and came to the conclusion that the accused had failed to submit enough evidence to convince the court that he was eligible for the privilege of being exempted from military service based on his religious beliefs. The first-instance court also concluded that the Convention did not guarantee the right to refuse to perform military service because of religious beliefs but instead referred that issue to States ’ discretion.

On 3 August 2010 the applicant lodged an appeal. In particular, he complained that he had corresponded with various authorities for a period of almost four years and had never evaded the relevant authorities. He had also not had the intention to avoid his obligations but had asked for an alternative kind of 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 military service and that his actions had not constituted a criminal act. The applicant further relied on a domestic court and prosecutor ’ s office decision whereby criminal proceedings against two people of Russian origin with similar beliefs had been discontinued.

On 8 September 2010 the Court of Appeal dismissed the appeal and the applicant was immediately arrested in the courtroom.

In its decision the appeal court reiterated the reasoning of the first ‑ instance court but made no mention of the applicant ’ s submission regarding other people in a similar situation whose criminal proceedings had been discontinued.

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

On 25 January 2011 the Supreme Court dismissed the appeal and upheld the decision of 8 September 2010. The Supreme Court held, inter alia, that the person in the prosecutor ’ s office decision on terminating criminal proceedings referred to in the applicant ’ s complaint had in fact been the head of the local community of Jehovah ’ s Witnesses, while the applicant had failed to submit any evidence to prove he himself was a “clergyman”. 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.

The applicant served his nine-month prison term and was released on 8 June 2011.

COMPLAINT

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