Fair trial standards in criminal investigation on charges related with religious activity

1. Domestic legislation governing freedom of religion

The basic principles of freedom of religion in the Republic of Azerbaijan and its protection as a basic obligation of the state are determined by the Constitution of the Republic of Azerbaijan, which is the "fundamental law" of the national legal system. All legal provisions in all other legislative acts related to the exercise of one's religious beliefs, which have the nature of legal regulation, originate from these basic norms of the Constitution, and the legal norm is determined without contradicting the constitutional principles and based on them.

Article 18 of the Constitution of the Republic of Azerbaijan, entitled "Fundamentals of the State", clarifies the nature of the relationship between religion and the Azerbaijani state. According to this article, religion is separate from the state, ie religious laws are not allowed to influence the government in any form and are excluded from it. This principle is reflected in Article 7 of the Constitution, which declares that "the state of Azerbaijan is a secular republic." Article 18 of the Constitution, in essence, also stipulates that freedom of religion shall be equally protected by the state, regardless of which religion a person belongs to, provided that these religious movements do not contradict the principle of humanity and human dignity.

"Freedom of conscience" is enshrined in Article 48 as one of the fundamental human and civil rights and freedoms set forth in Section II, Chapter III of the Constitution. Essentially, freedom of conscience includes the right of everyone to determine their religion independently, to practice any religion solely or in association with others, or not to believe in any religion, and to express and disseminate their beliefs about religion.[1] As it is one of the forms of expression of religious beliefs, the performance of religious ceremonies is considered free as long as it does not contradict social norms and moral concepts.

Article 71 of the Constitution defines the protection of all human and civil rights and freedoms, as well as freedom of religion, as specified in Chapter III, as the main task of the state and all its subsidiary bodies, as well as the courts, which play the main guarantor of justice. Article 48 of the Constitution regulates a principle called "internal freedom of religion,"[2] According to this paragraph, no one may be compelled to express his religion, conscience, opinion or belief under any circumstances and in no case, this will give rise to the legal liability of a person of religious faith. The type of "outer freedom of religion" [3] is a sectoral normative legal act that provides for the exercise of religious freedom solely or in association with others, publicly or without disclosure, and more detailed regulatory norms related to the responsibilities of the state in this regard is the law of the Republic of Azerbaijan "On freedom of religion". The law also regulates the state registration of religious organizations and their ownership of property.

In the language of the legislation, this threshold is called "religious extremism" and the Law of the Republic of Azerbaijan "On Combating Religious Extremism" regulates the forms of struggle against it broadly. This law distinguishes sincere religion, worship, and religious belief from religious enmity, religious radicalism, or religious fanaticism, and explicitly excludes the possibility of freedom of law for the former, this law also strictly excludes the possibility of freedom created by law for the former for the latter from the moment the characteristics of the latter are observed in the former, all the law enforcement structures of the state shall be mobilized to fight against them, and the regulation shall determine the nature of this struggle.

 

[1] Constitution of Azerbaijan, A 48

[2] European Commission For Democracy Through Law (Venice Commission), Guidelines For Legislative Reviews Of Laws Affecting Religion Or Belief,  Osce/Odihr Panel Of Experts On Religion Or Belief,  11 June 2004, Section B.1, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2004)061-e

[3] ECHR, CASE OF Hasan and Chaush v. Bulgaria, (Application no. 30985/96), § 60.

2. Normative bases of freedom of religion in international law

As we have seen, the existence of secular norms in the legislation of the Republic of Azerbaijan, which reflect a highly tolerant attitude towards people of religious beliefs, is clearly derived from international law, international treaties and conventions. To this end, let us look through the basic legal norms related to the need to ensure freedom of religion contained in international legal covenants:

One of the most influential international acts in both the legislative system and the jurisprudence of the Republic of Azerbaijan is indisputably the "European Convention for the Protection of Human Rights and Fundamental Freedoms" (hereinafter "Convention / ECHR"). Paragraph 1 of Article 9 of the Convention, entitled "Freedom of Thought, Conscience and Religion", states that everyone has the right to freedom of thought, conscience and religion and states that this right includes the freedom to change one's religion or belief, the freedom to practice one's religion or beliefs alone or in association with others, and the freedom to perform one's worship, teachings, religious or ceremonial rites openly or privately.

The European Court of Human Rights has a number of rulings recognizing violations of Article 9. These include complaints from Azerbaijan sent by representatives of the Jehovah's Witnesses religious organization. One of them is the decision on the case "Nasirov and others" № 58717/10, in its ruling, the European Court recognized a violation of Articles 5 (right to freedom) and 9 of the Convention and stated in its ruling that religious freedom was primarily a matter of thought and conscience as a general principle regarding Jehovah's Witnesses going door-to-door in an effort to share their belief and the freedom of religion as enshrined in Article 9 of the Convention stipulates that it should be exercised not only solely, but also with others in society.[1] The overt practice of religious belief includes worship, the performance of religious rites, teaching, and observation. Because the manifesto of a religious belief can be observed with possible influences on others, article 9, paragraph 2, of the Convention provides that, in accordance with the will of the legislature, religious beliefs may be practised in public, that is, in public: Freedom to practice one's religion and views" may be subject only to the restrictions necessary in a democratic society to maintain public order, health or morality in the interests of public order or these restrictions must be at a level of necessity in a democratic society to protect the rights and freedoms of others.[2]

Although religious freedom is primarily a matter of individual faith, it also implies the freedom to "practise a religion" inter alia, solely and secretly or in association with others and with those who share the same beliefs.[3] Since religious communities are traditionally organized institutions, Article 9 must be interpreted in the light of Article 11 of the Convention, which provides guarantees to prevent the state`s unfounded interference with freedom of assembly.[4] From this perspective, the right to religious freedom, including the right of believers to worship in the same community as others, includes the expectation that believers will be able to assemble freely without illegal state interference.[5] Of course, the existence of independent religious communities is an issue of great importance for pluralism in a democratic society, and therefore this issue is primarily essential for the protection provided for in Article 9. The unbiasedness and impartiality of the State, as enshrined in the case-law of the Court, is inconsistent with any of the State's powers to assess the legitimacy of religious beliefs.[6]

According to Article 14 of the ECHR, the exercise of the rights and freedoms enshrined in the Convention must be ensured without discrimination against persons of different faiths.

Freedom of religion and conscience is one of the fundamental civil and political rights enshrined in the International Covenant on Civil and Political Rights, adopted by UN General Assembly Resolution 2200 A (XXI) of 16 December 1966. Thus, according to Article 18, everyone has the right to freedom of thought, conscience and religion, including the right to have a religion or belief of his choice or to accept the religion or belief of his choice and everyone has the right to freedom of exercising his religion and belief, pray, worship, perform religious and ceremonial rites and teachings, solely or in association with others publicly or privately. Paragraph 3 of the same article stipulates that freedom to practice one's religion and beliefs may be restricted only by law and it is necessary for the protection of public safety, order, health and morals, as well as the fundamental rights and freedoms of others. This article also defines the religious and spiritual upbringing of parents by their children as part of their freedom of religion.[7]

One of the most important and detailed acts in this area is the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief, adopted by the UN General Assembly on 25 November 1981.[8] While the Declaration, which consists of eight articles, defines freedom of religion as the primary responsibility of States committed to the protection of fundamental human rights and freedoms, Article 6 sets out in detail what freedoms include freedom of thought, conscience, religion or belief.

 

[1] ECHR, CASE OF NASIROV AND OTHERS v. AZERBAIJAN, (Application no. 58717/10), § 65.

[2] ECtHR, Eweida and Others v. the United Kingdom, (App. no. 58717/1048420/10, 36516/10, 51671/10),  § 80.

[3] ECtHR, Case of Hasan and Chaush v.Bulgaria, (Application no. 30985/96), § 60, Venice Commission Joint Guideleness, page 7.

[4] EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) AND OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN RIGHTS (OSCE/ODIHR), Joint Guideleness ON THE LEGAL PERSONALITY

OF RELIGIOUS OR BELIEF COMMUNITIES, Adopted by the Venice Commission At its 99th Plenary Session (Venice, 13-14 June 2014), CDL-AD(2014)023, page 5.

[5] ECtHR, Case of Hasan and Chaush v.Bulgaria, § 65.

[6] ECtHR, Case of Metropolian Church of Bessarabiya and others v.Moldova, §118 and 123, Hasan and Chaush v.Bulgaria, § 62.

[7] CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), §6, § 8.

[8] For the full text of the declaration: See: https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/36/55

3. Criminal sanctions for violation of the legislation on freedom of religion.

First of all, it should be noted that the Criminal Code of the Republic of Azerbaijan divides the crimes related to freedom of religion into two parts, as socially dangerous acts threatening the exercise of freedom of religion and socially dangerous acts arising in connection with the exercise of freedom of religion outside the norms provided by law.

While the first category of crimes in the Criminal Code aims to protect religious people in relation to the subjects of these crimes, the purpose of the second category of criminal elements in the Criminal Code is to protect society, ie outsiders, in relation to religious persons who are the subject of the crime and who seek to exercise their religious beliefs in an extremist or more rigorous manner.

The first category we are talking about includes several crimes. The first of these is "Obstruction of the performance of religious rituals" provided for in Article 167 of the Criminal Code.

It should not be forgotten that the subjects who possess the right to freedom of religion are not only religious persons, but also people without any religious beliefs. Therefore, Article 167-1 of the Criminal Code is a means of criminal legal protection of freedom of religion. Therefore, Article 167-1 of the Criminal Code acts as a means of criminal legal protection of freedom of religion whose disposition states that “forcing a person to believe in any religion (religious movement), including performing religious rites and ceremonies or participating in religious rites and ceremonies, as well as receiving religious education or being a member of any religious organization, or prevent him from leaving the religious organization of which he is a member.”

The list of crimes that may be committed in connection with religious belief includes “Illegal production, import, sale or distribution of religious literature, audio and video materials, goods and other information materials of religious content” (Article 167-2); "Preparation, storage or dissemination of religious extremist materials, ie materials calling for or substantiating such religious extremist activity, or justifying the necessity of such activity (Article 167-3);" "To form, lead and organize a group operating under the guise of spreading religious sects and performing religious rites, which violates public order, harms the health of citizens or regardless of form, organizing, leading or participating in a group that violates the rights of citizens, as well as distracts citizens from performing their duties established by law (Article 168); Conducting rites and ceremonies related to Islam by a citizen of the Republic of Azerbaijan who received religious education abroad without the consent of the relevant executive authority (Article: 168-1.1) in accordance with the Law of the Republic of Azerbaijan “On Freedom of Religion”; “When the actions aimed at inciting national, racial, social or religious hatred and enmity, degrading national dignity, as well as restricting the rights or determining the preferences of citizens depending on their national, racial or religious affiliation committed explicitly, including through the media (Article 283.1).”

In principle, these crimes set limits on the behaviour of religious people in sharing their religious views with others, spreading them, and expressing their religious beliefs from the moment they become socially dangerous. It should be emphasized that the act specified in Article 167-2 of the Criminal Code, as well as Article 168-1.1, ie the lack of appropriate permission, should be assessed in the light of the "public danger" of the crime, ie the import of religious literature that does not pose a public threat. should not cause. Otherwise, such a punishment violates the principle of "necessity for a democratic society" set out in Article 9.2 of the ECHR.[1]

Religiously motivated actions of persons practising their religion should be characterized as socially dangerous if they:

  1. Are religiously hostile, ie show a strong uncompromising and intolerant attitude towards other religions,
  2. Have the character of religious radicalism, ie to express commitment to extremist religious views within any religious belief, show an uncompromising position in determining the exclusivity of those religious views and use aggressive methods and means in their dissemination;
  3. Are accompanied by religious fanaticism, ie the exclusion of any critical approach to religious beliefs and blind adherence to religious norms.

The second category,[2] ie criminal offenses in which potential subjects may be religious persons, is predominant in criminal law. It should be noted that the amendments to the Criminal Code have been expanded in recent years, as well as the disposition of the amendments to the Criminal Code dated 28.10.2016, 214 "Terrorism", "278. Seizing or forcibly retaining power, forcibly changing the constitutional structure of the state ”; “279. Establishment of armed formations or groups not provided by law ”; “283. Incitement of national, racial, social or religious hatred and enmity ”; “283-1. Disposition of the articles "Creation of a stable group for the purpose of participation in armed conflicts outside the Republic of Azerbaijan" was expanded by adding the words “if committed on the grounds of religious hostility, religious radicalism or religious fanaticism” and, accordingly, heavier sanctions were envisaged for those articles. This was a measure taken after a significant number of our citizens went to fight for ISIS in Syria.

This can be seen as a result of the state's sharpening of its stance against hard believers and their forms of spreading and living their religious beliefs, as well as attempts to create a legal basis for measures to be taken against them.

 

[1] ECtHR, Case of Nasirov and others v. Azerbaijan § 61

[2] This does not mean that the subjects of the so-called "second category" of crime can be only religious people. These crimes may also have been committed by persons of no religious beliefs. The division into such categories is simply intended to better define the scope of the regulatory norms provided for in criminal law in relation to religious persons.

4. Official accusations used in the persecution of believers for religious activities in our country:

We got familiarised with the legal attitude towards people of certain religions both in international human rights and in the legislation of the Republic of Azerbaijan. As we have seen, this attitude aims to create conditions for them to practice their religion freely.In particular, all rights and freedoms of religious persons have been ensured in the local legislation,[1] in accordance with the norms of international legal agreements to which the Republic of Azerbaijan is a party. However, the current situation, which reflects the attitude of local law enforcement agencies towards those who practice different religions and want to practice their religion freely, reveals a number of problems with the application of legal guarantees in the legislation. It can even be observed that in some cases, criminal sanctions for violations of the law on freedom of religion have been abused against religious people, serving to increase the influence of legal charges against them.

We see that religious people often face such obstacles when they want to practice their religion with others, express their beliefs openly and spread them. One of these cases, and possibly one of the biggest, has appeared in regard with the Muslim Unity Movement,[2] an association of individuals who both practise Islam and criticise the political power and want to spread and practise their beliefs openly. In this event - which is often referred to in Azerbaijani society as the "Nardaran events/case," Taleh Bagirzadeh and dozens of other people who practise Islam are remembered, who were convicted on trumped-up charges and sentenced to long prison terms.[3]

In particular, as we have noted, the reason of ours for claiming that these allegations are unfounded is that neither the preliminary investigation nor the trial has established any credible evidence against these criminal charges, the severe torture[4] has been detected during the investigation, the case has not been included in the criminal case and in legal terms, Taleh Bagirzadeh and others are not the subjects of any unlawful act or deed contrary to the norms of local and international law which we have also mentioned in this article on freedom of religion.

In order to get a general idea of ​​the category and features of the charges against Taleh Bagirov and others, we present the following extract from the title of the official indictment:

“Bagirov Taleh Kamil oglu, forcibly changing the constitutional structure of the state in violation of the Constitution of the Republic of Azerbaijan, establishing an organization called the Muslim Union Movement Public Union without proper state registration, gathering supporters from Baku and other regions of the country to carry out actions aimed at building a religious state governed by Sharia law under the leadership of this movement, by getting together as an organized group with those who share their views and dividing their responsibilities to ensure that their crimes are committed in an organized manner .... Collecting membership fees from members of an illegal organization called the Muslim Unity Movement, as well as collecting donations in boxes in their own mosques and public places, using it to finance an organized group, leading a publication of the international public, political and legal newspaper Azad News, of which editor-in-chief of Abulfaz Bunyatov has been appointed by a falsified order by a member of the gang, Elchin Gasimov, by discussing ways to turn the population of the republic against the government in its illegal meetings, openly calling on the members of the movement, as well as supporters gathered in Baku and various regions of the country, not to comply actively with the lawful demands of the representative of the government, and to commit mass riots, openly calling for actions aimed at forcible seizure of power and forcible change of the constitutional structure of the state in violation of the Constitution of the Republic of Azerbaijan and .... as well as ... coordinating actions aimed at inciting religious hatred and enmity among the population, in order to disrupt public safety, to create panic among the population, to influence the decision of the state authorities in favour of the illegal organization to which they belong... ”

The official charges against Taleh Bagirov and other believers are as follows:

  1. Crimes against the person

Article 120. Intentional homicide: 120.2.1; 120.2.3; 120.2.4; 120.2.7; 120.2.12, 29; 120.2.1, 29; 120.2.3, 29; 120.2.4, 29; 120.2.7; 120.2.12, 28;

  1. Crimes against public safety and public order

Article 214. Terrorism: 214.2.1, 28; 214.2.3; Article 214-2. Open calls for terrorism

Article 220. Mass riot: 220.2;

Article 228. acquisition, transfer, sale, storage, transportation and carrying of Illegal weapons, their components, ammunition, explosives, items and devices: 228.3; 228.4;

  1. Crimes against the State:

Article 278. Forcible seizure or forcible retention of power, forcible change of the constitutional structure of the state

Article 279.1: Establishment of armed formations or groups not provided by law,

Article 281. Public incitement against the state: 281.2;

Article 283. Incitement of national, racial, social or religious hatred and enmity: 283.2.3

  1. Crimes against the rules of authority

Article 315: Resistance or use of force against a government official

It should be noted that in this case, the crimes against the person appeared as a result of "Crimes against public safety and public order" and "Crimes against state power." Therefore, the crimes of the 2nd and 3rd categories, which we will cover in this article and which are characteristic of accusing believers of committing crimes, are of this nature.

While analyzing the accusations against believers in the "Nardaran case" by category, it follows that in the Republic of Azerbaijan, freedom of religion is generally protected, provided that their right to practice their beliefs freely and with others, to unite in various groups and associations for this purpose, to try to spread their beliefs, and to make open religious appeals for this purpose shall not intersect with the political interests of the state. In the case of "Taleh Bagizadeh and others", as a result of obedience to Islam and its rules, any public association in order to try to restore goodness, truthfulness and justice in the society, openly expressing their views on the above, has been described as rebellion and disobedience by the state as evidenced by the legal charges against them.

 

[1] LFRB A.12.

[2] “”Nardaran case”; Political Motives, Illegalities and Realities”Research Report, Center for the Protection of Political Prisoners, 21.02.2017, https://www.turan.az/advertisements/Nardaran%20ishi%20siyasi%20motiv.htm

[3] NARDARAN CASE: 270 years in prison, torture, village taken under control, 25.01.2018, https://d9mc3ts4czbpr.cloudfront.net/az/article/nardaran-isi-270-illik-ceza-isgenceler-nezarete-goturulen-kend/

[4] "If the aim is to kill Abulfaz Bunyadov, let them shoot him once and for all",08.06.2019, Meydan TV, https://www.meydan.tv/az/article/meqsed-ebulfez-bunyadovu-oldurmekdirse-birdefelik-gulle-vursunlar/

5. Procedural actions to be taken by the defence in criminal charges related to religious freedom

First of all, according to the Criminal Procedure Code of the Republic of Azerbaijan, ensuring the rule of law in criminal proceedings is one of the main principles of the Criminal Procedure Code of the Republic of Azerbaijan and under current law, everyone is guaranteed basic human rights and freedoms without discrimination, regardless of their religious beliefs or religious affiliation.

As noted in the sections above, the allegations of abuse of religious freedom can be divided into two categories. These are, on the one hand, criminal offenses arising from the violation of the LFRB, which we examined in Section 3, and, on the other hand, other (non-religious) motives, which we discussed in Section 4 of this study.

As the dispositions and the nature of the criminal case in these crimes are different, the standards of fair trial may be different in them. What standards of fair justice law should be used in such protections? Let's first briefly review these standards:

  1. The right to have sufficient time and resources to prepare for defense;
  2. The right to self-defense, the right to appear in court, he should be defended either by a lawyer he hired, if he is not capable of hiring a lawyer, the government must provide him with a free lawyer;
  3. The right to question witnesses against him, as well as the right to request that witnesses in his favour be present in the case on an equal footing with witnesses against him;
  4. The right to be familiarised with and examine the material evidence which forms the basis of the accusation against him, and this examination shall include an examination by an independent expert.
  5. The right to present evidence in one's favour and demand it to be investigated, both during the pre-trial investigation and during the trial (principle of equality of arms)
  6. The right to consider the case within a reasonable time;
  7. The right to a free translator if he does not understand the language of the court;
  8. If convicted, the right to an effective review of the case on appeal;
  9. The right to the prohibition of forcing a person to testify against himself and to remain silent
  10. The right to a confidential meeting with a lawyer, medical examination, non-discrimination and ill-treatment during detention,
  11. Substantiation of court decisions (including rulings).

Procedural actions are actions taken by the participants in criminal proceedings in accordance with the provisions of the Code of Criminal Procedure and its provisions. As noted above, there are a number of specific procedural actions, depending on the nature of the criminal charges against believers, that are important in order to achieve a fair outcome in criminal cases in which believers act as defendants. These may include, for example, a request by a defense party to conduct a theological examination and a forensic linguistic-theological examination during the pre-trial or forensic investigation.

Such petitions are especially important for revealing the truth on the following charges: The Code of Criminal and Administrative Offenses stipulates the activities related to the implementation of the sale, distribution of religious literature which is not approved for sale or import in accordance with the Law of the Republic of Azerbaijan “On Freedom of Religion” are sanctioned.[1] In this regard, the State Committee for Work with Religious Organizations has the authority to control the production, import and distribution of religious literature, items and other information materials with religious content, to give consent in accordance with the legislation on the basis of appeals of religious organizations and relevant government agencies. There is no ban on the publication and distribution of such religious literature in the country unless it is proven by a theological examination that the literature presented as evidence against the accused contradicts the principles of humanity, contains ideas that promote religious hatred and enmity, damage religious and inter-religious relations, and negatively affect the current religious situation, tolerance and multicultural environment in our country. Therefore, if the nature of the accusation is related to religious literature banned in the country, it is necessary to issue an appropriate opinion by a theological expert.

Forensic examination of expressions in the context of freedom of religion is also carried out mainly by the SCWRA. The submission to the court of foreign precedents on the legitimacy of the use of similar literature (expressions therein) in foreign countries and protocol them would be good for a successful defense, even if the opinion is given that particular literature is unacceptable by an expert. Because in this case, local courts will have to provide reasonable grounds as to why, for example, literature that is allowed to be sold in different countries is not allowed to be used in our country.

In practice, both the European Court of Human Rights[2] and the UN Human Rights Committee[3] have ruled against Azerbaijan that the administrative fines imposed on individuals belonging to the Jehovah's Witnesses for possession of booklets without permission were unlawful.[4]

Justification (reasoning) of court decisions: This is one of the important conditions of the standards of a fair trial. According to the ECHR, the principle of legal certainty is one of the necessary conditions for ensuring the rule of law in a democratic society. Justification - just as it eliminates arbitrariness, it is also necessary to determine whether a resolution is unlawful when an appeal is lodged. This raises the question: should the national court take into account the evidence and motions put forward by one of the parties?

If an argument or proof is really important for the resolution of a case, the national court must, of course, take it into account and justify its decision if it rejects it, otherwise it would violate a fair trial.[5]

The right to a fair trial requires that the parties have access to all the evidence and opinions presented in the case and are able to express their views (if they want).[6]

We must emphasize another important point here. The ECHR tends not to challenge the facts of the case in national proceedings. The ECHR has repeatedly stated this.[7] However, if the facts of a case based on national courts are inconsistent, the ECHR may investigate the facts of the case.

If evidence gathered illegally is used in the case, the ECHR's opinion is as follows:

The duty of the ECHR is not to examine whether the evidence was obtained illegally; the Court must examine whether this "illegality" is the result of a violation of another right protected by the Convention.[8] For example, if the investigator beats the defendant and obtains information about the location of the evidence effortlessly, the evidence cannot be used as it violates Article 3 of the ECHR. In the Nardaran 1 and Nardaran 2 cases, the defense side filed various motions concerning illegal evidence, which were transferred to the ECHR.

All evidence in criminal cases must be presented in court in the presence of the accused. At the pre-trial stage, the criminal case in our country is closed to the defense. The ECHR is not in favour of this. Thus, if there is a witness who testified against the accused, the defense must be allowed to ask questions during the preliminary investigation.[9]

However, as we have examined above, especially in the so-called “Nardaran case”, it was found that the accused were tortured and testified against themselves and that the motions of the defence were not accepted and witnesses were not heard.[10] Such conduct by the courts may serve as a basis for further determination of such judgments as contrary to the Convention and Article 14 of the ICCPR.[11] For this reason, in such criminal cases, it is important to submit a written request for the proofs, the gathering of evidence and the hearing of witnesses in a timely manner. If the trial court does not examine them, the conditions of a fair trial will not be fulfilled in terms of both impartiality and justification.

The right to an immediate, confidential and unrestricted meeting with a lawyer is also an important part of fair court standards.[12] In the case of Nardaran, which I mentioned, there were difficulties in the lawyers' meetings with the defendants.

Another type of justification is the court's assessment of the evidence presented in the appeal in its decision. In this regard, the ECHR's position is that courts do not have to respond in detail to every allegation, and in some cases, the court may simply repeat the grounds of the lower court's decision.[13] However, the decision of the lower court must be legally and logically sound, and no new (reasonable) objections must be raised.

In our country, it is presumable to observe that the courts of appellate instances did not give a reasonable answer to every appeal made by the accused in their appeals. The ECHR's settled practice is that while appellate courts do not have to respond to every complaint in detail, court decisions must usually be substantiated and examine the merits of the appeal in their decision. The decision of the appellate court without examining them is also a violation of the standard of a fair trial.

The last point we want to touch upon in relation to the standards of a fair trial is the quality of the law, which has been cited as the reason for the restriction of religious freedom. As is well known, any restriction on freedom of religion must be enshrined in law, but in order for a rule of law to be considered a law, it must be a clear, comprehensible, expansive, predictable text that provides protection against arbitrariness.[14] However, it is possible to see that the mechanism of application of sanctions both in criminal cases and in proceedings on administrative offenses is not the same as in the decisions of the ECHR on Azerbaijan. For example, in the case of Mammadov against Azerbaijan, according to the ECHR, although the application of the regulation of Article 22 of the LoFRB to citizens is questionable, the court's failure to provide an explanation violated the principle of compliance with the law.[15] Returning to our legislation, the failure to specify the exact conditions for the issuance/refusal of the mark of consent and control in the import and production of religious literature, or the lack of conditions for the approval of a clergyman to be the head of a religious community, deprives the relevant provisions of the “quality of law” standard. Therefore, petitions and protests on these issues should be filed in local courts.There will be a dual goal, on the one hand, to improve the quality of local legislation, on the other hand, the successful conduct of such cases in the ECHR.

  1. Conclusion

Although our Criminal Procedure Legislation is quite progressive in terms of human rights protection, due to the lack of independence of the judiciary, taking the principle of expediency as the basis, not the rule of law in governance, due to the inclusion of restrictive provisions in the Law on Freedom of Religion, the Criminal Code, and the Code of Administrative Offenses, believers may face punishments that are not "necessary in a democratic society." Carrying out the restrictions on religious freedom in some cases is not only disproportionate but also in violation of fair court standards. Since the main reason for this is the political and non-independent nature of the courts, in such cases, the defense must be creative to ensure a fair trial, act in accordance with the relevant standards, and strive to achieve them.

 

[1] See: Article 515 of the Code of Administrative Offenses and Article 167-2 of the Criminal Code.

[2] ECtHR, Case Of Mammadov v. Azerbaijan, Application no. 7308/12.

[3] UN Human Rights Committee, Aziz Aliyev, Jeyhun Aliyev and others v. Azerbaijan, 2805/2016.

[4] ECtHR, Case Of Relıgıous Communıty Of Jehovah’s Wıtnesses V. Azerbaijan, Application no. 52884/09.

[5] Karakasis v.Greece, 17.10.2000, §.23.

[6] F.R v.Swizerland, 28.06.2001, §.36

[7] Klaas v Germany, 22.11.93, §.29

[8] Ramanauskas v. Lithuania, 05.02.2008, §.52

[9] Moul, Harbi, page 75.

[10] “Nardaran case”; political motives, illegalities and realities ”, https://www.turan.az/advertisements/Nardaran%20ishi%20siyasi%20motiv.htm

[11] UN Human Rights Committee, General Comment No. 32 “Article 14: Right to equality before courts and tribunals and to a fair trial”, § 39. 

[12] UN Human Rights Committee, General Comment No. 32 “Article 14: Right to equality before courts and tribunals and to a fair trial”, § 34. 

[13] Garcia Ruiz v.Spain, 21.01.1991, §.34.

[14] ECtHR, Case Of Relıgıous Communıty Of Jehovah’s Wıtnesses V. Azerbaijan, Application no. 52884/09, § 27.

[15] ECtHR, Case Of Mammadov v. Azerbaijan, Application no. 7308/12., § 34.