Background

In Rafiyev v Azerbaijan [2025] ECHR 171, Mr Rafiyev was a follower of the Nurism sect of Islam [5]. In 2017, after attending a funeral, he and others visited a friend, TA, at his house and, at around 1 pm, several police officers raided the house and arrested Mr Rafiyev and twenty-one others. They were ultimately charged with violating the rules on holding religious meetings, contrary to Article 515.0.2 of the Code of Administrative Offences [6&7]. He was found guilty; the court accepted the police evidence that, following the funeral ceremony, he had gone to TA’s house and had prayed, though he had not known that praying at TA’s house had constituted “a religious meeting” [9]. His appeal was unsuccessful [10&11]. Before the ECtHR, he complained of breaches of Article 5 (liberty and security), Article 6 (fair trial) and Article 9 (thought, conscience and religion). 

The arguments

On the complaints under Article 5, the Government argued that Mr Rafiyev had not been detained or arrested within the meaning of Article 5 but had been “taken to the police station so that an administrative-offence report could be compiled” and that he had been there for a period of around eight and a half hours [23]. Mr Rafiyev countered that that in itself had been a deprivation of liberty [24].

As to Article 6, Mr Rafiyev claimed that the domestic courts had failed to establish the existence of a religious meeting. There was no evidence that he had organised a religious meeting and the domestic courts had found him guilty of breaching the legislative rules on organising and holding religious meetings solely because he had prayed in a house [38]. The Government contended that the domestic proceedings had been fair and that the courts had examined the Mr Rafiyev’s arguments carefully and had weighed them against the statements of the police and other evidence in the case file.

In relation to Article 9, the Government submitted that Mr Rafiyev had failed to exhaust domestic remedies because he had not raised Article 9 in the domestic courts [47]. Further, the interference had been prescribed by Article 515.0.2 of the CAO and Article 12 of the Law on freedom of religious belief. In that connection, the house where the religious meeting had taken place had been uninhabited and had special places for prayer and ablution as found in a mosque. The interference had pursued the legitimate aim of protecting public order and had to be regarded as necessary in a democratic society for the purposes of Article 9 Mr Rafiyev countered that he had expressly complained of an unlawful interference with his right to freedom of religion in his appeal to the Sumgayit Court of Appeal [48]. The interference with his religious practice had not been prescribed by law and had not been necessary in a democratic society [51]. The Government argued that the interference had been prescribed by Article 515.0.2 of the Code of Administrative Offences CAO and Article 12 of the Law on freedom of religious belief. The house where the religious meeting had taken place had been uninhabited and had special places for prayer and ablution as found in a mosque, and the interference had pursued the legitimate aim of protecting public order and had to be regarded as necessary in a democratic society for the purposes of Article 9 [52]. 

The judgment

On Article 5, the Court noted that Mr Rafiyev had been taken to the police station so that an administrative offence report could be compiled, but it had not been explained why the report could not have been drawn up at the place where the offence had been discovered. Neither the domestic authorities nor the Government had provided any justification for his arrest, nor had they explained why it would have been “impossible” to achieve the goals laid down in the relevant legislation without arresting him and taking him to the police station [32]. There had therefore been a breach of Article 5 [34].

As to Article 6:

“the domestic courts merely accepted the authorities’ version of events and the charges as presented in the relevant police report without addressing the applicant’s specific arguments and without attempting to clarify the disputed facts. In particular, they failed to identify and assess the applicant’s role in organising the meeting in question, having regard to the undisputed fact that the applicant was not the owner of the premises where the meeting took place and had only been there as a guest” [43].

The administrative-offence proceedings, considered as a whole, had not constituted a fair hearing and had therefore violated Article 6 [44&45].

As to Article 9, it was clear from the documents that Mr Rafiyev had complained of an interference with his right to freedom of religion in his appeal [10]. Moreover:

“the expression ‘prescribed by law’ not only refers to a statutory basis in domestic law but also requires that the law be formulated with sufficient precision to enable the individual to foresee the consequences which a given action may entail. The law must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention and indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise” [57].

Further:

“even assuming that the private residence where the applicant assembled with others was used as a place of religious worship as argued by the Government, the Court finds it necessary to reiterate that, while States can put in place a requirement that religious denominations be registered in a manner compatible with Articles 9 and 11 of the Convention, it does not follow that sanctioning an individual member of an unregistered religious organisation for praying or otherwise manifesting his or her religious belief is compatible with the Convention … To accept the contrary would amount to the exclusion of minority religious beliefs which are not formally registered with the State and consequently would amount to admitting that a State can dictate what a person can or cannot believe” [60].

The interference had not, therefore, been “prescribed by law” [61] and there had been a violation of Article 9 [63].