FIRST SECTION
CASE OF SARDAR BABAYEV v. AZERBAIJAN
(Applications nos. 34015/17 and 26896/18)
 
JUDGMENT
 
Art 9 • Freedom of religion • Manifest religion or belief • Worship • Teaching • Criminal conviction of a local clergyman for preaching and conducting Friday prayers solely based on blanket ban on the conduct of Islamic religious rites and rituals by Azerbaijani citizens who obtained their religious education abroad • Interference not shown to pursue any “pressing social need” and thus not “necessary in a democratic society”
Art 3 (substantive) • Degrading treatment • Applicant’s confinement in a metal cage during pre-trial detention appeal hearing
Art 5 § 3 • Reasonableness of pre-trial detention • Domestic courts’ failure to provide “relevant” and “sufficient” reasons justifying applicant’s pre-trial detention
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
1 February 2024
 
FINAL
 
01/05/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sardar Babayev v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Lətif Hüseynov,
 Péter Paczolay,
 Ivana Jelić,
 Gilberto Felici, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the applications (nos. 34015/17 and 26896/18) 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 an Azerbaijani national, Mr Sardar Akif oglu Babayev (Sərdar Akif oğlu Babayev – “the applicant”), on 2 May 2017 and 19 May 2018, respectively;
the decision to give notice to the Azerbaijani Government (“the Government”) of the complaints concerning Articles 3 and 5, Article 6 § 2, and Articles 9, 10, 11 and 14 of the Convention and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 9 January 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present two applications concern the pre-trial detention and subsequent criminal conviction of the applicant, a local clergyman who obtained his religious education abroad, for preaching and conducting Friday prayers in a mosque. THE FACTS
2. The applicant was born in 1974 and at the time of the events lived in Masalli. He was represented by Mr J. Javadov, a lawyer based in Azerbaijan. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background information
5. The applicant obtained his religious education in Iran between 1991 and 2000. In 2000 he returned to Azerbaijan, where he was involved in religious activities. According to the applicant, he had been preaching and conducting Friday prayers in the Masalli city mosque since 2009. 6. By a law of 4 December 2015, a new Article 168-1 was added to the Criminal Code which criminalised the conduct of Islamic religious rites and rituals by citizens of the Republic of Azerbaijan who had obtained their religious education abroad (see paragraph 31 below). 7. In October 2016 the Masalli city mosque was closed for works, but its religious community continued to hold religious ceremonies within the precincts of the mosque, in the courtyard designated for mourning ceremonies, and the applicant continued to conduct Friday prayers there. Institution of criminal proceedings against the applicant and his remand in custody
8. By a letter of 8 November 2016, the Head of the Masalli District Executive Authority informed the local branch of the State Security Service that on 4 November 2016 the applicant had conducted Friday prayers within the precincts of the Masalli mosque, in the area designated for mourning ceremonies, in breach of Article 168-1.1 of the Criminal Code. 9. It appears from the documents in the case file that on 30 December 2016 criminal proceedings were instituted by the Masalli District Police Office in connection with the above-mentioned incident and that the applicant was questioned on three occasions as a witness. 10. On 22 February 2017 the applicant was charged under Article 168‑1.3.1 of the Criminal Code. He was, in particular, accused of preaching and conducting Friday prayers within the precincts of the Masalli Juma mosque in the area designated for mourning ceremonies on 4 and 18 November 2016. 11. On the same day the Masalli District Court, referring to the official charge brought against the applicant and a request by the prosecutor to apply the preventive measure of remand in custody, ordered the applicant’s pre-trial detention for a period of one month and seven days, citing the gravity of the charge and the likelihood that if released, he would abscond and obstruct the investigation. 12. On 24 February 2017 the applicant appealed, arguing that there was no justification for his pre-trial detention. 13. On 16 March 2017 the Shirvan Court of Appeal dismissed the appeal, reiterating the reasons given by the lower court. According to the applicant, during the court hearing he was confined in a metal cage in the courtroom. In support of his allegation, he provided a photograph of his confinement in the cage. News item published by a private news agency
14. On 23 February 2017 a news item entitled “An individual conducting unlawful religious activity was detained in Masalli” was published on the website of a private news agency. The news item indicated that the Deputy Head of the State Committee for Work with Religious Associations (Dini Qurumlarla İş Üzrə Dövlət Komitəsi – hereinafter “the Committee”), namely S.H., had exclusively (özəl olaraq) informed that news agency of it. The news item further indicated that, according to S.H., criminal proceedings had been instituted against Sardar Babayev (the applicant) under Article 168-1.3.1 of the Criminal Code and that on numerous occasions the applicant had conducted religious rites in Masalli city mosque, in breach of the law, and had continued his unlawful activity despite repeated warnings. Extension of the applicant’s pre-trial detention
15. Following a request by the prosecutor, on 27 March 2017 the Masalli District Court extended the applicant’s pre-trial detention by one month, until 30 April 2017. The court justified its decision by the gravity of the charges, the possibility of his absconding, obstructing and reoffending, and the need for additional time to carry out further investigative actions. 16. On 30 March 2017 the applicant appealed against that decision, arguing that the first-instance court had failed to justify his continued detention. He asserted that there was no risk of his absconding or obstructing the investigation and that the first-instance court had failed to take into consideration his personal situation. 17. On 6 April 2017 the Shirvan Court of Appeal dismissed the appeal, finding that the extension of the applicant’s pre-trial detention had been justified. 18. On 19 April 2017 the Masalli District Court extended the applicant’s pre-trial detention until 20 May 2017. The court substantiated the necessity of this extension on the grounds that a number of investigative steps needed to be carried out, as well as the gravity of the charges, and the possibility of his absconding and obstructing the investigation. 19. On 24 April 2017 the applicant appealed against that decision, reiterating his previous complaints. 20. On 4 May 2017 the Shirvan Court of Appeal dismissed the appeal, finding that the extension of the applicant’s detention pending trial had been justified. The applicant’s trial and criminal conviction
21. On 11 May 2017 the prosecutor in charge of the case issued a bill of indictment and filed it with the Masalli District Court. 22. On 19 May 2017 the Masalli District Court held a preliminary hearing at which it decided, inter alia, that the preventive measure of remand in custody in respect of the applicant should remain unchanged. 23. On 3 July 2017 the Masalli District Court found the applicant guilty under Article 168-1.3.1 of the Criminal Code and sentenced him to three years’ imprisonment. Relying on various witness statements and a video‑recording dated 9 December 2016, the court found that the applicant had committed the criminal offence provided for by Article 168-1.3.1 of the Criminal Code because, although he had obtained his religious education in Iran, he had preached and conducted Friday prayers within the precincts of the Masalli Juma mosque in the area designated for mourning ceremonies on 4 and 18 November 2016, as well as on 9 December 2016. 24. On 23 July 2017 the applicant appealed against that judgment, claiming in particular that there had been a breach of his right to freedom of religion as protected under Article 9 of the Convention. 25. On 25 September 2017 the Shirvan Court of Appeal dismissed the applicant’s appeal. The appellate court made no mention of the applicant’s particular complaint under Article 9 of the Convention. 26. On 13 February 2018 the Supreme Court upheld the applicant’s conviction. RELEVANT LEGAL FRAMEWORK
The Constitution of the Republic of Azerbaijan
27. At the material time, the relevant provisions of the Constitution provided as follows:
Article 7 – Azerbaijani State
“I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...”
Article 18 – Religion and State
“I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law. ...”
Article 48 – Freedom of conscience
“I. Everyone shall enjoy freedom of conscience. II. Everyone shall have the right to freely determine his or her attitude to religion, to profess, individually or together with others, any religion, or to profess no religion, and to express and disseminate his or her beliefs concerning his or her attitude to religion. III.  [People] shall be free to hold religious ceremonies, provided that [those ceremonies] do not violate public order or public morals. ...”
The Law on Freedom of Religious Belief of 20 August 1992
28. By a law of 30 June 2009, a new third paragraph was added to Article 21 of the Law on freedom of religious belief which read as follows:
“The conduct of Islamic religious rites and rituals may be carried out only by citizens of the Republic of Azerbaijan who studied in the Republic of Azerbaijan.”
29. By a law of 4 December 2015, the third paragraph of Article 21 was amended as follows:
“The conduct of Islamic religious rites and rituals may be carried out only by citizens of the Republic of Azerbaijan. Citizens of the Republic of Azerbaijan who obtained a religious education abroad are forbidden to conduct Islamic religious rites and rituals.”
30. By a law of 16 May 2017, the second sentence of the third paragraph of Article 21 was amended as follows:
“Citizens of the Republic of Azerbaijan who obtained a religious education abroad may be allowed to conduct Islamic religious rites and rituals by the Caucasus Muslims Board (Qafqaz Müsəlmanları İdarəsi [the official governing body of Muslim religious organisations in Azerbaijan]), in agreement with the relevant executive authority.”
Criminal Code
31. By a law of 4 December 2015, a new Article 168-1 was added to the Criminal Code which provided at the material time as follows:
Breach of the requirements for conducting religious propaganda, rites and rituals
“168-1.1. The conduct of Islamic religious rites and rituals by a citizen of the Republic of Azerbaijan who obtained his or her religious education abroad shall be punishable by a fine in the amount of between 2,000 and 5,000 manats, or deprivation of liberty for a period of up to one year.
168-1.2. The conduct of religious propaganda by a foreigner or a stateless person shall be punishable by deprivation of liberty for a period of between one and two years.
168-1.3. The actions referred to in Articles 168-1.1 and 168-1.2 of this Code, if committed:
168-1.3.1.  repeatedly
168-1.3.2.  by a group of individuals by prior arrangement or by an organised group
shall be punishable by deprivation of liberty for a period of between two and five years.”
32. By a law of 6 March 2018, the first paragraph of Article 168-1.1 was amended as follows:
“The conduct of Islamic religious rites and rituals by a citizen of the Republic of Azerbaijan who obtained his or her religious education abroad, without the consent of the relevant executive authority as provided for by the Law on freedom of religious belief of the Republic of Azerbaijan shall be punishable by a fine in the amount of between 2,000 and 5,000 manats, or deprivation of liberty for a period of up to one year.”
relevant International document
33. The relevant extracts from the Joint Opinion (opinion no. 681/2012; CDL-AD (2012)022) on the Law on freedom of religious belief of the Republic of Azerbaijan by the European Commission for Democracy through Law (Venice Commission) and the OSCE/ODIHR adopted by the Venice Commission at its 92nd Plenary Session (12‑13 October 2012), read (footnotes omitted):
Article 21. Religious rites and rituals
“100. According to Article 21, paragraph 3, of the Law, ‘Islamic religious rites and rituals may be carried out only by citizens of the Republic of Azerbaijan [who?] studied in the Republic of Azerbaijan.’ This provision would also appear to be discriminatory and should be deleted, as under international law, freedom of religion cannot be restricted on grounds such as nationality or place of study. The above requirement is unnecessarily strict and in conflict not only with the premise of the law that state and religion are separate but also with the freedom to manifest his religion in ‘worship, teaching, practice and observance’, as stated in Article 9 (1) of the [Convention].”
THE LAW
JOINDER OF THE APPLICATIONS
34. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
35. Relying on Article 3 of the Convention, the applicant complained that his confinement in a metal cage in the courtroom during the appeal hearing on 16 March 2017 had violated his human dignity and amounted to degrading treatment. Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
 AdmissibilityThe parties’ submissions

36. The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint. In particular, they asserted that the applicant had failed to bring this issue to the attention of the court which had heard the case, to ask it to take him out of the metal cage or to lodge a complaint seeking compensation for the alleged violation of his right. 37. The applicant disagreed with the Government’s submissions, arguing that confinement in a metal cage was standard practice and that the Government’s objection of non-exhaustion of domestic remedies was unsubstantiated.

Outcome for Article 9: violation