FIFTH SECTION
 
 
 
 
 
 
CASE OF RELIGIOUS COMMUNITY OF JEHOVAH’S WITNESSES AND HANSEN v. AZERBAIJAN
 
(Application no. 52682/07)
 
 
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
30 January 2020
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Religious Community of Jehovah’s Witnesses and Hansen v. Azerbaijan,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
 André Potocki, President,
 Mārtiņš Mits,
 Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 7 January 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 52682/07) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Religious Community of Jehovah’s Witnesses (“the applicant community”) and a Norwegian national, Mr Oddvar Hansen (“the individual applicant”), on 16 November 2007. 2. The applicants were represented by Mr R. Cook, Ms I. Revazishvili and Mr R. Kohlhofer, lawyers practising in London, Gardabani and Vienna respectively. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3. The applicants alleged, in particular, that they had been deprived of their right to a fair trial, and that the domestic authorities had unlawfully interfered with their right to freedom of religion. 4. On 11 July 2017 notice of the complaints concerning Articles 6, 9 and 14 of the Convention was given to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. The Norwegian Government were informed of their right to intervene in the proceedings in respect of the individual applicant’s complaints (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), but they did not avail themselves of that right. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant community is a local religious community of Jehovah’s Witnesses with its registered seat in Baku, and the individual applicant, Mr Oddvar Hansen, is a Norwegian national who was born in 1950 and lives in Fervick. 7. On 24 December 2006 approximately 200 Jehovah’s Witnesses met for worship in a religious assembly at their meeting hall, situated on the second floor of a private building. 8. The building was owned by the individual applicant, who had rented it out to the applicant community under a lease (without payment) for the purposes of holding religious meetings. 9. According to the applicants, a “raid” on one of the religious meetings took place on 24 December 2006, involving more than forty officials, including: officers from the Khatai District Police Department, from police station no. 34; a representative from the State Committee for Work with Religious Associations; officials from the Khatai district prosecutor’s office and the Ministry of National Security. 10. According to a record compiled by the investigator from the Khatai District Police Department, search and seizure procedures were carried out on the applicants’ premises in order to prevent an unauthorised religious meeting, and eighteen items – consisting of computers and computing equipment as well as religious literature – were seized in the presence of attesting witnesses. 11. On 7 February 2007 the applicants lodged a complaint (in court supervisory proceedings – məhkəmə nəzarəti qaydasında icraat) with the Khatai District Court. Relying on the relevant Articles of the Code of Criminal Procedure (“the CCrP”) and Article 1 of Protocol No. 1 to the Convention, they requested that the court find that the search had been unlawful and order the return of the seized computer equipment, religious literature and other property. 12. According to affidavits (akt) dated 2 and 30 March 2007, the seized property was returned to the chairman of the applicant community. 13. On 7 May 2007 the Khatai District Court allowed the complaint in part and held that the search of the premises and the seizure of the private property had been unlawful, since the procedures had been carried out without a court order, which was contrary to the requirements of the CCrP. The court further held that all the computer equipment and literature registered in the report had already been returned to the applicant community. 14. On 10 May 2007 the Khatai district prosecutor lodged an appeal against the decision of 7 May 2007, requesting that the appellate court quash the part of the decision that was in the applicants’ favour. He submitted that the authorities had not broken into the building, as the doors had been open and the owner had permitted entry. 15. On 21 May 2007 the Baku Court of Appeal examined the case in the absence of the applicants, but in the presence of the prosecutor and a representative from the police. It stated that the applicants had been notified of the hearing, but had failed to appear or inform the court of the reasons for their absence. The court allowed the prosecutor’s appeal and stated that the police search and seizure had been lawful. It found that the measures had been implemented in accordance with Article 177.6 of the CCrP, which provided that a court order was not required when the owner of premises permitted entry. The decision was not amenable to further appeal. 16. While the transcript of the hearing states that a notification had been sent to the applicants but they did not attend the hearing, the applicants alleged that they had not received either the notification or a copy of the prosecutor’s appeal. According to the applicants, their lawyer, who happened to be at the Baku Court of Appeal in conversation with a police representative at the relevant time, did not learn until 22 May 2007 that the first-instance decision had been appealed against and subsequently quashed. II. RELEVANT DOMESTIC LAW
17. Chapter LII (Execution of the court supervision) of the CCrP lays down the procedure by which parties to criminal proceedings can challenge the acts or decisions of prosecuting authorities before a court in court supervisory proceedings. Article 449.1.3 provides that an accused (or a suspected) person or his counsel can challenge the acts or decisions of prosecuting authorities concerning operational-search activities. A judge examining the lawfulness of prosecuting authorities’ actions or decisions can quash them if he or she finds them to be unlawful (Article 451). The decision of a judge on the lawfulness of prosecuting authorities’ actions or decisions can be disputed before an appellate court in accordance with the procedure established in Articles 452-453 of the CCrP. A chamber of an appellate court, composed of three judges, examines this kind of appeal within three days of it being received, in a hearing held in camera (Articles 453.1 and 453.2). A person who has lodged a complaint has a right to participate in the relevant hearing, but if parties who have been notified of the time and place of the hearing fail to attend it, then this does not prevent the court from examining the case (Article 453.3). The decision of the appellate court shall be sent to the parties within three days of being delivered, and cannot be appealed against (Articles 453.8 and 453.10). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicants complained that they had not been informed of the appeal proceedings in their case and that they had been unable to take part in the hearing, which had infringed their right to a fair trial as provided for in Article 6 § 1 of the Convention, which reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ...”
A. Admissibility
19. The Government did not raise any objection as regards the applicability of Article 6 of the Convention. The Court notes that although the domestic courts examined the applicants’ complaint in criminal supervisory proceedings, the domestic proceedings did not concern a criminal charge against the applicants. Moreover, the applicants were never criminally charged. Therefore, examining firstly whether the applicants’ complaint is compatible ratione materiae with Article 6 of the Convention, the Court considers that this provision is not applicable under its criminal head. 20. However, the Court notes that, having brought the proceedings in question, the applicants sought a judicial declaration that the search conducted at their residence had been unlawful, and requested an order that the seized property be returned. Therefore, their civil rights to respect for their home and the peaceful enjoyment of their possessions were at stake (see, mutatis mutandis, Naït-Liman v. Switzerland [GC], no. 51357/07, § 106, 15 March 2018, and Denisov v. Ukraine [GC], no. 76639/11, § 51, 25 September 2018). This consideration is sufficient for the Court to conclude that Article 6 § 1 of the Convention is applicable under its civil head to the proceedings complained of. 21. The Court further notes that the complaint is neither manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
22. The applicants asserted that no notice of the appeal or notification of the appeal hearing had ever been sent to them. In their view, it had been particularly important that they be present at the appeal hearing, as it had been there that the authorities had raised a new issue for the first time in an attempt to justify the search and seizure of the applicants’ property on the grounds that there had been consent, and the applicants had been unable to confront that contention. 23. The Government submitted that the applicants had been duly informed about the date and place of the hearing before the appellate court, but had failed to appear before the court. Moreover, the Baku Court of Appeal had examined the case on the basis of the material submitted by both parties at the hearing before the court of first instance, including the applicants’ submissions and their arguments substantiating their claims. Therefore, the appellate court had been aware of the applicants’ position and their arguments, and the principle of equality of arms had been respected. 2. The Court’s assessment
24. The Court reiterates at the outset that the requirement of equality of arms, in the sense of a “fair balance” between the parties, applies to both criminal and civil cases (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, §§ 32-33, Series A, no. 274). The requirement of equality of arms would, however, be devoid of substance if a party to a case were not notified of a hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear as established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007, and Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 99, 7 July 2011). 25. The national courts must identify any defect in notification prior to considering the merits of a case. The analysis that the Court expects to find in domestic decisions must go beyond reference to the dispatch of judicial summonses, and must make the most of the available evidence in order to ascertain whether an absent litigant was in fact informed of an upcoming hearing sufficiently in advance (see Aždajić v. Slovenia, no. 71872/12, § 70, 8 October 2015). The answer to this question shall enable the courts to determine whether a hearing must be adjourned pending due notification (see Zemlyachenko v. Russia, no. 23866/06, § 22, 22 January 2013, and Kokurkhayev v. Russia, no. 46356/09, § 31, 13 December 2011). The courts cannot conclude that an absent litigant waived the right to attend in person without ascertaining whether he or she was made aware of the very existence of that right, and therefore of the hearing in question (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 87, 4 March 2014). Lastly, the Court reiterates that whenever the domestic courts examine the issue of an absent litigant being notified in a timely manner, they are expected to attach special importance and give full effect to his or her right to present his or her case effectively before the court without there being a substantial disadvantage vis-à-vis his or her opponent (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, § 38, 31 May 2016). 26. Turning to the circumstances of the present case, the Court notes that the applicants alleged that they had not received the summonses and had been unaware of the date and place of the appeal hearing in their case. The Government, in turn, submitted that the applicants had been informed of the appeal hearing and that the appellate court had not required the applicants’ presence in order to adjudicate on the appeal on the basis of the case file alone, in a comprehensive and fair manner. 27. As to the first argument, the Court notes that the Government submitted no proof supporting their submissions that the applicants had been notified of the appeal hearing. Nor does the text of the appeal judgment or the transcript of the hearing indicate that the appeal court verified whether the applicants had been effectively informed of the date and venue of the hearing. 28. Lacking any evidence of proper notification, the Court accepts the applicants’ submissions that they were not aware of the date and venue of the appeal hearing, and that this prevented them from attending. 29. As to the Government’s second argument, the Court notes that the appellate court examined the prosecutor’s appeal after hearing his arguments, while the applicants, who had not been given notice of the hearing, were not able to contest those arguments or make their own submissions. 30. The Court also notes that no appeal to a higher court lay against the decisions of appellate courts delivered in this type of complaint (see Article 453.10 of the CCrP in paragraph 17 above), and that the applicants had no possibility to obtain a further re-examination of the in absentia decision delivered in their case. 31. In the light of the foregoing considerations, the Court concludes that the applicants’ right to participate effectively in the proceedings and the right to equality of arms were restricted to an extent incompatible with the principles of a fair hearing established by Article 6 of the Convention. II. ALLEGED VIOLATION OF ARTICLEs 9 and 14 OF THE CONVENTION
32. The applicants complained that unlawful interference by the domestic authorities with their freedom of worship and practice had been incompatible with their right to freedom of religion. They also complained that they had suffered discrimination in the enjoyment of their Convention rights on the grounds of belonging to a religious minority. They relied on Article 9 and Article 14 of the Convention, taken in conjunction with Article 9, the relevant parts of which read as follows:
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
33. The Government argued that the applicants had not exhausted domestic remedies. They submitted that the applicants had not raised their complaints, even in substance, at any stage of the proceedings. 34. The applicants invited the Court to consider the issue of exhaustion of domestic remedies in the light of the general circumstances of the case, namely the fact that the complaints in question had been raised at domestic level in separate civil proceedings, which were also complained of in the present application. 35. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI). 36. The Court notes that it cannot address the applicants’ submissions concerning the domestic civil proceedings, as it declared their complaints in that regard inadmissible for non-exhaustion of domestic remedies when the Government were given notice of the complaints. 37. Turning to the facts of the present case, the Court observes that the proceedings in question concerned the applicants’ complaints in respect of the alleged unlawfulness of the search conducted at their premises and the seizure of their property. The applicants did not raise before the domestic courts, either explicitly or by implication, the issue of there having been an interference with their right to freedom of religion, or the issue that they had been discriminated against on those grounds. Moreover, the applicants did not state whether there had been special circumstances in the present case dispensing them from the obligation to raise such issues (compare Muradova v. Azerbaijan, no. 22684/05, § 131, 2 April 2009; Efendiyev v. Azerbaijan, no. 27304/07, § 50, 18 December 2014; and Yunusova and Yunusov v. Azerbaijan, no. 59620/14, § 156, 2 June 2016). 38. It therefore follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.

Article of the Convention at issue: Article 6
Outcome: violation