Communicated on 29 November 2016
FIFTH SECTION
Application no. 14604/08
Mushfig Faig Oglu MAMMADOV and Samir HUSEYNOV
against Azerbaijan
lodged on 7 March 2008
STATEMENT OF FACTS
The applicants, Mr Mushfig Mammadov (the first applicant) and Mr Samir Huseynov (the second applicant), are Azerbaijani nationals who were born in 1983 and 1984 respectively and live in Baku. They are represented before the Court by Mr R. Cook, Ms I. Revazishvilli and Mr R. Kohlhofer, lawyers practising in London, Gardabani (Georgia) and Vienna respectively.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The first applicant
The first applicant was baptised as a Jehovah’s Witness on 12 August 2007. He had regularly attended the weekly religious services of Jehovah’s Witnesses in Baku and frequently participated in the public ministry for which Jehovah’s Witnesses are well known.
On 12 July 2005, while studying at university and being temporarily exempted from military service for the period of his studies, the first applicant wrote to the Military Commissioner to request alternative civilian service and exemption from military service on the grounds of conscience and religious beliefs.
In spring 2006 the first applicant received an order to report for military service from the Sabail District Military Commission.
On an unspecified date, the Sabail District Prosecutor’s Office instituted criminal proceedings against the first applicant under Article 321.1 of the Criminal Code (refusal to perform military service).
On 21 July 2006 the Sabail District Court found the first applicant guilty and gave him a six-month suspended prison sentence.
On 15 August 2006 the first applicant lodged an appeal against that judgment. In particular, relying on the Constitution, the applicant submitted that as a conscientious objector he had legitimate grounds to refuse to perform military service and that his actions had not constituted a criminal act.
On 25 September 2006 the Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court.
On 1 December 2006 the first applicant lodged a cassation appeal against the appellate court’s decision.
On 3 April 2007 the Supreme Court upheld the Court of Appeal’s judgment of 25 September 2006.
On 3 September 2007 the first applicant sent a letter to the Chairman of the Supreme Court requesting a copy of the Supreme Court’s decision.
On 16 January 2008 the Supreme Court sent a letter to the first applicant with a copy of the judgment of 3 April 2007. The letter stated that two similar letters had been sent to the applicant previously, particularly on 12 September 2007 and 17 September 2007, and had contained copies of the judgment.
On 7 March 2008 the first applicant submitted his complaint to the Court.
On 5 June 2008 the Sabail District Prosecutor’s Office again instituted criminal proceedings against the first applicant under Article 321.1 of the Criminal Code.
On 20 August 2009 the first applicant was arrested and brought before the Sabail District Court, which ordered his detention for two months.
On 16 October 2009 the Sabail District Court found the first applicant guilty and fined him 250 Azerbaijani manats (approximately 230 euros at the time). The applicant was released in the courtroom.
On 5 November 2009 the first applicant lodged an appeal against that judgment. In particular, he complained that he had already been punished for the imputed criminal act by the previous judgment delivered in his case. Relying on the Constitution, the Convention, the Court’s case-law and several other international instruments, the applicant argued that he had legitimate grounds to refuse to do military service and that his actions had not constituted a criminal act.
On 9 December 2009 the Court of Appeal dismissed the appeal and upheld the lower court’s judgment. The appellate court made no mention of the applicant’s specific arguments.
On 15 September 2010 the first applicant lodged a cassation appeal, reiterating his previous complaints. The applicant further relied on decisions by the domestic court and the prosecutor’s office on discontinuing criminal proceedings against two people of Russian origin with similar beliefs.
On 29 December 2010 the Supreme Court dismissed the cassation appeal and upheld the decision of 9 December 2009. The Supreme Court held, inter alia, that the provisions of the Constitution providing an alternative service were not mandatory or set out in relevant legislation, which had not yet been passed. The Convention also did not guarantee the right to refuse military service because of religious beliefs. The court further held that the decision referred to in the applicant’s complaint about the prosecutor’s office discontinuing criminal proceedings had related to a person who had in fact been the head of a Jehovah’s Witnesses’ local community, while the applicant, however, had failed to submit evidence to prove he was a “clergyman”. The Supreme Court also held that the applicant’s previous conviction had followed the particular criminal act of illegally refusing to carry out military service, while his second conviction had been based on an indictment concerning a new, separate criminal act.
B. The second applicant
The second applicant was baptised as a Jehovah’s Witness on 15 February 2004. He had regularly attended the religious services of Jehovah’s Witnesses in Russia, where he had previously lived, and in Ganja after moving to Azerbaijan with his family.
On 3 July 2007 the second applicant refused to obey an order to report for military service from the Goranboy District Military Commission.
On an unspecified date, the Goranboy District Prosecutor’s Office instituted criminal proceedings against the second applicant under Article 321.1 of the Criminal Code (refusal to perform military service).
On 4 October 2007 the Goranboy District Court found the second applicant guilty and sentenced him to ten months’ imprisonment. The second applicant was immediately arrested in the courtroom.
On an unspecified date, the second applicant lodged an appeal. In particular, relying on the Constitution, the applicant submitted that as a conscientious objector he had legitimate grounds to refuse to carry out military service and that his actions had not constituted a criminal act.
On 1 May 2008 the Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court. The appellate court observed that the Constitution defined military service as an obligation on all citizens and relied on the Court’s case-law in concluding that the provisions of Article 9 of the Convention did not guarantee the right to be excused from rules applicable to the general population. The court also observed that the applicant had failed to submit evidence to prove that military service was against the religious beliefs of Jehovah’s Witnesses.
On 16 July 2008 the second applicant lodged a cassation appeal against the appellate court’s judgment.
On 2 December 2008 the Supreme Court dismissed the cassation appeal and upheld the judgment of 1 May 2008.
COMPLAINTS
The applicants complain that their criminal conviction for refusing to serve in the army constituted a violation of Article 9 of the Convention.
The first applicant also complains, without relying on any Convention Article, that his second criminal conviction for his refusal to serve in the army amounted to a violation of his right not to be tried and punished twice for the same offence.
The applicants further complain under Article 14 of the Convention taken in conjunction with Article 9 of the Convention that they were discriminated against on the ground of their religious belief.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ freedom of thought, conscience, or religion, within the meaning of Article 9 § 1 of the Convention on account of the applicants’ criminal conviction for refusing to perform their military service? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?
2. Has the first applicant been convicted twice for the same offence on the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?
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