After the frenzy surrounding Pope Benedict’s surprise resignation and the media speculation about his successor it’s back to some good old-fashioned, crunchy case-law.
There is a suspicion that in some countries registration of religious groups as legal entities is being used as a means of social control, typically by refusing to register minority, non-traditional or dissident religious groups. In Azerbaijan, where relations between some religious communities and the Government have been rather strained, there have been two recent linked cases before the European Court of Human Rights with very different outcomes.
In Asadbeyli & Ors v Azerbaijan 3653/05 14729/05 16519/06 20908/05 26242/05 36083/05 – HEJUD  ECHR 2047 (11 December 2012) the applicants were eleven Azerbaijani nationals who complained about the unfairness of criminal proceedings brought against them following their arrest for allegedly participating in an unauthorised demonstration in October 2003 in protest against the presidential elections. The protest had escalated into violent clashes between opposition supporters and the law-enforcement authorities. Relying in particular on Article 6 ECHR (fair trial), they alleged that there had been serious breaches of numerous fair trial guarantees in the criminal proceedings against them. One of the applicants, Elşad Eyvaz oğlu Mammadov, further complained that he had been prosecuted for his involvement in the demonstration in two separate sets of proceedings – administrative and criminal – in breach of Article 4 of Protocol No. 7 (right not to be tried or punished twice). One of the others, Mr İlqar İbrahim oğlu Allahverdiyev, had at one point taken refuge in the Norwegian Embassy but later arrested. The First Section found that there had been a violation of Article 6 in respect of the applicants generally and of Article 4 of Protocol No. 7 in the case of Mr Mammadov.
Juma Mosque Congregation & Ors v Azerbaijan 15405/04 HEJUD  ECHR (8 January 2013) raised two issues: the refusal to register the congregation of the Juma mosque in Baku and its ejection from the building in which it had worshipped since the early 1990s. In 1996 the Freedom of Religion Act 1992 had been amended to require all religious organisations to re-register and it set up the Caucasus Muslims Board (“CMB”) as the Muslim regulatory authority formally independent of the Government. However, the applicants took no steps to submit to the authority of the CMB. In 2001 the State Committee for the Affairs of Religious Organisations (“SCARO”) became the responsible authority for registering religious organisations and in 2002 announced that all previously-registered religious organisations would have to re-register. The Juma congregation duly applied but was told on two separate occasions that its documentation was defective and that it had failed to include a recommendation from the CMB with its application. In 2004 the state authority responsible for historical monuments gave the congregation notice to quit and was granted an eviction order. The congregation appealed against the order was all the way to the Supreme Court but the appeals were unsuccessful.
The applicants’ principal complaints before the First Section were
- that the domestic authorities’ refusal to re-register the Juma congregation unless it recognised the authority of the Caucasus Muslims Board had violated its rights to freedom of religion and of association under Articles 9 and 11 ECHR;
- that its eviction from the mosque had breached Articles 9, 10 and 11;
- that the proceedings before the domestic courts had been unfair, ineffective and biased, contrary to Articles 6 and 13; and
- that they had suffered discrimination contrary to Article 14.
The Court ruled the entire application inadmissible. As to the complaints under Articles 9 and 11, the applicants had failed to exhaust domestic remedies and, as to the complaints about eviction under Articles 9, 10 and 11, they had had no proprietary rights to Juma Mosque; moreover, the eviction had not restricted their freedom to manifest their religion because they could do so in other mosques. The remainder of the application was also rejected.
Comment: The Becket Fund for Religious Liberty, which assisted with the appeal to the ECtHR, argues that the mosque was targeted by the authorities because İlqar İbrahim oğlu Allahverdiyev, its leader, was a prominent democracy and religious liberty activist and the congregation would not agree to replace him with a Government-appointed imam – and it must be said that the two cases sit rather oddly together.
No doubt the decision in Juma Mosque Congregation was entirely correct in terms of the issue before the ECtHR – the congregation had failed to exhaust domestic remedies and its claim to the building was at best extremely tenuous and at worst nonexistent – but the fact of Mr Allahverdiyev’s leadership of the Juma congregation casts at least degree of doubt on the motives of the authorities in closing the congregation down. Since it was undoubtedly the case that all the criminal trials – including Mr Allahverdiyev’s – failed to measure up to the standards of Article 6, the suspicion is that, on the civil matter of re-registration, the congregation of the Juma Mosque may not, in reality, have had any effective domestic remedies to exhaust.