FOURTH SECTION
CASE OF HAMZAYAN v. ARMENIA
(Application no. 43082/14)
 
 
 
JUDGMENT
Art 9 • Freedom of religion • Administrative penalty imposed on a Jehovah’s Witness for discussing the Bible with a third person in the latter’s home • Lack of clear and foreseeable legal basis • Interference not “in accordance with the law”
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
6 February 2024
 
FINAL
 
06/05/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hamzayan v. Armenia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Sebastian Răduleţu, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the application (no. 43082/14) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Marina Hamzayan (“the applicant”), on 10 June 2014;
the decision to give notice to the Armenian Government (“the Government”) of the complaints, raised under Articles 9 and 14 of the Convention, concerning administrative proceedings brought against the applicant in the unrecognised “Nagorno Karabakh Republic”, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 16 January 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns complaints, raised under Articles 9 and 14 of the Convention, in relation to an administrative penalty imposed on the applicant, a Jehovah’s Witness, by the authorities of the unrecognised “Nagorno Karabakh Republic” (“the NKR”), for discussing the Bible with a third person in the latter’s home. THE FACTS
2. The applicant was born in 1980 and lives in Yerevan. She was represented by Mr S.H. Brady and Mr A. Carbonneau, lawyers practising in Strasbourg. 3. The Government were represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 4. The facts of the case may be summarised as follows. 5. The applicant is a Jehovah’s Witness. At the material time she lived in the city of Stepanakert, in the “NKR”. 6. On 23 February 2013 the applicant and her friend, A.H., visited interested persons in the town of Shushi, also located in the “NKR”, to discuss the Bible, including an elderly woman, N., with whom A.H. was acquainted, and who had apparently participated in a couple of religious gatherings with Jehovah’s Witnesses. 7. Shortly thereafter the police arrived and searched the applicant’s and A.H.’s belongings. A search record was drawn up, which stated that the religious literature found in the applicant’s bag had been seized. 8. The applicant and A.H. were then taken to the police station, where they were questioned and their belongings were searched again. They were kept at the police station for about four and a half hours. 9. The applicant was subsequently informed by the Administrative Commission of the Stepanakert Mayor’s Office (“the Commission”) that she had been charged with an administrative offence under Article 206 § 2 of the Code of Administrative Offences of the “NKR” (“the CAO”; see paragraph 20 below). She was summoned to appear at a hearing to be held on 2 April 2013. 10. On 2 April 2013 the Commission held a hearing and imposed a fine of 1,000 Armenian drams (approximately 2 euros) on the applicant, finding it established that, in breach of Article 206 § 2 of the CAO, she had “breached the rules set out in the legislation on the organising and holding religious gatherings, marches and other rituals of worship”. 11. The record of the relevant hearing, in so far as the decision in respect of the applicant is concerned, reads as follows:
“As a result of the discussion, the [Commission]
... Examined – The materials about [the applicant] received from ... the police ... concerning the violation of the legislation on religious association under Article 206 § 2 of the [CAO]. The Chairman stated that the previous session had been adjourned following a request [by the applicant’s lawyers] to invite Senior Lieutenant [A.], [the police officer who had visited N.’s house] for questioning.
... In reply to [the applicant’s lawyer’s] questions, [A.] stated:
- Having received a complaint from [N.] ...that Jehovah’s Witnesses had come to her house and were disturbing her, I visited her house and saw religious books on the table, but [the Jehovah’s Witnesses] stopped talking when they saw me. We have received three complaints from [N.], who stated that she had been invited to gatherings several times but she had refused, after which they had come again to try to persuade her. [The applicant] and [A.H.] had disturbed the peace. According to [N.], [A.H.] and [the applicant] had taken her to gatherings several times but she had then not wished to participate in them and every time they invited her she felt embarrassed and let them into her house. The members of the [Commission] did not ask the witness any questions.
[The Commission] proceeded to make a decision concerning the administrative offence. Decided – to impose a fine of 1,000 (one thousand) drams on [the applicant] under Article 206 § 2 of the [CAO].”
12. The Government submitted to the Court that L.M., a site inspector of the Shushi Regional Department of the “NKR” Police, had received telephone calls and complaints from residents in the area under his supervision that Jehovah’s Witnesses had visited their homes, distributing books, religious materials and other items, disturbing the peace and undermining their freedom of religion. They did not submit any documents in that connection. 13. On 13 May 2013 the applicant appealed against the decision of 2 April 2013 (see paragraph 10 above) to the “NKR” Administrative Court (“the Administrative Court”). She argued, amongst other things, that the impugned decision did not contain a description of the underlying facts, did not make it clear what kind of wrongdoing she had committed and, overall, was not based on any reasons. 14. By a judgment of 24 June 2013, the Administrative Court declared the Commission’s decision of 2 April 2013 null and void, finding that it was not properly reasoned. The relevant parts of the judgment read as follows:
“It follows from [the Commission’s decision of 2 April 2013] that it was considered established that the applicant had breached the rules for organising and holding religious gatherings, marches and other rituals of worship, whereas it is not clear from the aforementioned decision by which action she had committed [the offence in question]. Since it is not clear from the aforementioned decision ... which rules for organising and holding religious gatherings, marches and other rituals of worship the applicant has specifically violated ... [the Commission’s decision] ... has imposed an obviously unlawful obligation on the applicant ...”
15. The Stepanakert Mayor’s Office lodged an appeal with reference to, inter alia, Article 26 of the “NKR” Constitution (see paragraph 19 below) and sections 6 and 7 of the “NKR” Freedom of Conscience and Religious Organisations Act (see paragraphs 21 and 22 below). The appeal also referred to N.’s statement to the police which stated, among other things, that she was not a Jehovah’s Witness; she alleged that she had attended two religious gatherings with Jehovah’s Witnesses because she had been manipulated. 16. On 31 October 2013 the “NKR Administrative Court of Appeal” (“the Court of Appeal”) quashed the Administrative Court’s judgment of 24 June 2013 (see paragraph 14 above) and upheld the Commission’s decision of 2 April 2013 (see paragraph 10 above). The relevant parts of its decision read as follows:
“... It follows from [Article 26 §§ 2 and 3 of the ‘NKR’ Constitution] that the right to freedom of thought, conscience and religion is guaranteed in [the ‘NKR’] only for the followers of a religious association which has been legally registered, whereas in all other cases the Constitution does not guarantee the [freedom of thought, conscience and religion] of a group associated with any religion or faith or its existence.
[References to sections 6 and 7(1) of the ‘NKR’ Freedom of Conscience and Religious Organisations Act; see paragraphs 21 and 22 below] ... That is to say, only legally registered religious organisations benefit from the right to carry out religious activity in [the ‘NKR’].
... the case against the applicant...has been examined on the basis of the case material obtained by the Shushi Police ... namely [N.’s] complaint to site inspector [L.M.] ... about the Jehovah’s Witnesses’ visits to her home ... The case file does not contain ... a certificate of State registration of a religious entity named ‘Jehovah’s Witnesses’... Hence, the law does not guarantee the right of a religious association called ‘Jehovah’s Witnesses’ to operate in the ‘NKR’. It follows that [the Commission] ... acted within its powers under the Constitution and the law ...
... The decision is subject to appeal before the [‘NKR’] Supreme Court within a period of one month from the date of delivery ...”
17. The applicant lodged an appeal on points of law. 18. On 13 December 2013 the “NKR” Supreme Court declared the applicant’s appeal on points of law inadmissible for lack of merit (that is, it refused the applicant leave to appeal). RELEVANT LEGAL FRAMEWORK
constitution
19. Article 26 of the Constitution of the “NKR”, as in force at the time of the events at issue in the present case, reads as follows:
“1. Everyone shall have the right to freedom of thought, conscience and religion. 2. The expression of freedom of thought, conscience and religion may be restricted only by law on the grounds set out in Article 52 of the Constitution. 3. The freedom of activity of religious organisations operating in accordance with the law is guaranteed.”
code of administrative offences
20. Article 206 of the “NKR” Code of Administrative Offences (“the CAO”) provides that a violation of the legislation on religious association is punishable by a fine of between 30% and 100% of the minimum monthly wage. The same provision provides that a violation of the legislation on religious association may take the following forms: avoidance by the leaders of a religious association of the requirement to register it with State governance bodies (Article 206 § 1); a breach of the rules set out by the legislation on organising and holding religious gatherings, marches and other rituals of worship (Article 206 § 2); and the organisation and holding by religious ministers and members of religious associations of special gatherings of children and young people, as well as other groups or gatherings which are not connected with labour, literature and rituals of worship. Freedom of Conscience and Religious Organisations Act
21. Section 6 of the “NKR” Freedom of Conscience and Religious Organisations Act provides that the following religious organisations operate in the “NKR”:
(i) the Armenian Apostolic Holy Church (abbreviated to “the Armenian Church”) with its traditional organisations;
(ii) other religious organisations which are established and function within the circle of their respective believers in accordance with their own property and charter. 22. Section 7(1) lists the rights of religious organisations, including, inter alia, the right to provide religious services in places of worship and on sites owned by them, acquire objects and materials of religious significance and create religious studies groups. Section 7(3) states that the rights of religious organisations are granted upon registration in the territory of the “NKR”. THE LAW
ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
23. The applicant complained that the imposition of an administrative penalty on her for a peaceful discussion of a religious text constituted an unlawful and disproportionate interference with her right to freedom of religion as provided in Article 9 of the Convention, which reads as follows:
“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.”
AdmissibilityJurisdiction

24. The Government submitted that Armenia had no jurisdiction over the matters complained of by the applicant, all of which had occurred in the territory of the “NKR”, which had an independent institutional and legal set-up, with its own legal and judicial policies over which the Republic of Armenia did not have any influence. In Chiragov and Others v. Armenia ([GC], no. 13216/05, § 186, ECHR 2015) the Court had referred to “effective control” over the territory but not over subjects, that is, the actions of the local authorities were never attributed to Armenia. 25. The applicant argued that the Government’s submissions regarding Armenia’s lack of responsibility under the Convention for the actions of the “NKR” authorities contradicted the Court’s earlier findings on the subject (the applicant notably referred to Chiragov and Others, cited above, §§ 169‑86; Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, §§ 214-15, 17 March 2016; and Muradyan v. Armenia no. 11275/07, § 126, 24 November 2016). She submitted that Armenia had jurisdiction over the matters complained of and was responsible for the violation of her Convention rights by the “NKR” authorities. 26. The Court notes that it has recently examined in another case the issue of Armenia’s jurisdiction over the territory in question, including with regard to the decisions of the “NKR” authorities, and found that, at the relevant time (that is, prior to the changes in the situation on the ground as a result of the Nagorno-Karabakh war, which ended on 10 November 2020 with Azerbaijan capturing all the surrounding territories and part of the “NKR” proper and with the deployment of Russian peacekeepers in the area for at least five years (see Nana Muradyan v. Armenia, no. 69517/11, § 91, 5 April 2022) and a further change in the situation on the ground in September 2023 as a consequence of the nine-month long blockade of Nagorno-Karabakh, the subsequent actions of Azerbaijan and the exodus of the Armenian population of Nagorno-Karabakh), Armenia had jurisdiction over the matters complained of, namely, in that case, the refusal of requests by the Christian Religious Organisation of Jehovah’s Witnesses to be registered as a religious organisation in the “NKR” (see, in particular, Christian Religious Organization of Jehovah’s Witnesses in the NKR v. Armenia, no. 41817/10, §§ 48 and 49, 22 March 2022; see also Avanesyan v. Armenia, no. 12999/15, §§ 31-38, 20 July 2021, with further references, concerning the detention and conviction of a Jehovah’s Witness for conscientious objection in the “NKR”). 27. The case at hand relates to the “NKR” authorities’ decision to impose an administrative penalty on the applicant in 2013 (see paragraph 10 above). The Court finds no particular circumstances in the instant case, all of which similarly took place prior to the hostilities between Armenia and Azerbaijan which ended on 10 November 2020 (see Avanesyan, § 37, and Christian Religious Organization of Jehovah’s Witnesses in the NKR, § 49, both cited above), that would require it to depart from its findings in those judgments and therefore concludes, that, at the material time, Armenia had jurisdiction over the matters complained of for the purposes of Article 1 of the Convention, including the “NKR” authorities’ decision to impose an administrative penalty on the applicant. 28. It follows that the Government’s objection of lack of jurisdiction should be dismissed. Compliance with the six-month rule
29. The Government submitted that, in the event that the Court should find that Armenia had jurisdiction over the applicant’s complaints, the six‑month time-limit should be calculated from 31 October 2013, that is, the date of the decision of the “NKR” Court of Appeal (see paragraph 16 above) which upheld the Commission’s decision of 2 April 2013 to impose an administrative penalty on the applicant (see paragraph 10 above). They argued that, in the light of the applicant’s submissions that there was an ongoing campaign against the Jehovah’s Witnesses in the “NKR”, it should have been apparent to the applicant that her appeal on points of law did not have reasonable prospects of success. 30. The applicant insisted that the final domestic decision was that of the “NKR” Supreme Court of 13 December 2013, which had declared her appeal on points of law inadmissible for lack of merit (see paragraph 18 above). 31. As a rule, the six-month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. Article 35 § 1 cannot be interpreted in a manner that would require an applicant to inform the Court of his or her complaint before his or her position in connection with the matter had been finally settled at the domestic level; otherwise, the principle of subsidiarity would be breached. However, this provision allows only remedies that are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions that have no power or authority to offer effective redress for the complaint in issue under the Convention. It follows that if an applicant has recourse to a remedy that is doomed to fail from the outset, the decision on that appeal cannot be taken into account for the purposes of calculating the six-month period (see Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018, with further references). 32. The Government argued that the six-month period in respect of the applicant’s complaint about the imposition of an administrative penalty on her should be calculated from 31 October 2013, the date of the decision of the “NKR” Court of Appeal (see paragraph 16 above). 33. The Court notes, however, that the decision of the Court of Appeal was amenable to appeal before the “NKR” Supreme Court (see paragraph 16 in fine above), a possibility of which the applicant availed herself (see paragraph 17 above). There is nothing in the material before the Court to support the Government’s argument that, by lodging an ordinary appeal on points of law against the appellate court’s decision, the applicant pursued an apparently ineffective remedy which was doomed to fail from the outset (see the case-law summarised in paragraph 31 above). Furthermore, it remains unclear on what grounds the Government considered that specifically an appeal on points of law submitted before the “NKR” Supreme Court constituted an ineffective remedy as opposed to, for instance, the claim brought by the applicant before the “NKR” Administrative Court to contest the Commission’s decision of 2 April 2013 (see paragraph 13 above). In those circumstances, there is no basis for the Court to find that the decision of the “NKR” Court of Appeal dated 31 October 2013, which was amenable to appeal, constituted the “final decision” in the present case within the meaning of Article 35 § 1 of the Convention. 34. The Court observes that the “NKR” Supreme Court declared the applicant’s appeal on points of law inadmissible for lack of merit, that is to say, refused to grant her leave for appeal, by its decision of 13 December 2013 (see paragraph 18 above), and that the applicant lodged her application on 10 June 2014, that is, in compliance with the six-month rule. The Court therefore dismisses the Government’s objection that the application was lodged out of time. Other grounds for inadmissibility
35. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

36. The applicant asserted that the imposition of an administrative penalty on her for sharing her religious beliefs by preaching had interfered with her rights under Article 9 of the Convention. That interference was not prescribed by law, as demonstrated by the “NKR” Administrative Court’s judgment of 24 June 2013 (see paragraph 14 above), which had set aside the Commission’s decision on the grounds that the Stepanakert Mayor’s Office had failed to indicate which “rules” on “organising and holding religious gatherings, marches and other worship rituals” she was found to have breached. Furthermore, that interference had not pursued a legitimate aim and had not been necessary in a democratic society. 37. The Government submitted that there had been no interference with the applicant’s rights guaranteed under Article 9 of the Convention. She was a member of the community of Jehovah’s Witnesses, which de facto continued to freely carry out its activities in the territory of the “NKR”. In any event, any alleged interference with the applicant’s rights was prescribed by the law, had taken place in view of public safety and the interests of the State and the population and had been justified. 38. Referring to section 6 of the “NKR” Freedom of Conscience and Religious Organisations Act (see paragraph 21 above), the Government submitted that the community of Jehovah’s Witnesses was not a registered religious organisation in the “NKR”, which fact, however, did not constitute an obstacle to the exercise of the right of that community – of which the applicant was a member – to freedom of thought, conscience and religion. 39. The Government further referred to Article 206 of the CAO (see paragraph 20 above) and submitted that at the time when the administrative penalty was imposed on the applicant, martial law had been declared in the “NKR”. According to witnesses who gave evidence during the hearing before the Commission, several complaints had been received about the activities of Jehovah’s Witnesses in the area, and those activities had been conducted in such a way that disturbed the peace (visiting the residents’ homes and distributing religious literature).

Article of the Convention at issue: Article 9
Outcome: violation