Worship and religious rituals: what restrictions included in legislation in Azerbaijan
by Emin Abbasov
- 1. Background
- 2. Freedom of religious worship and rituals: does national legislation complying international standards?
- 3. Concluding remarks
The right to worship and religious rituals are protected within the general constitutional framework of the Republic of Azerbaijan. National legislation further envisages this freedom and its practical application through different normative legal acts. The Constitution also separates religion from the state and enshrines that all religions are equal before the law and prohibits the spread and propaganda of religions (religious movements) which humiliate human dignity and contradict the principles of humanism.
Although, theoretically being inside the ambit of the Constitutional framework and recognized by several constitutional provisions, with the recent deterioration of the overall human rights situation in Azerbaijan, the state of religious freedoms have also been adversely affected. Despite the constitutional provisions, including the commitments stemming from the ratified international conventions, ordinary national legislation, and its arbitrary application have waived religious rights and freedoms.
The rigid and restrictive national legislation was adopted without genuine consultation with the civil society by the parliament which almost controls all the seats obtained through undemocratic and not free elections. In addition to it, the judicial oversight of compliance with constitutional norms and legal principles does not also exist due to the lack of independent judiciary. In the event of conflicts or interventions to the freedom of religion, courts, in all cases, undermines to the extent to which the freedom may be exercised.
Restrictive legislation on religious freedom, as well as the government's harsh administrative practices, have been closely monitored by a number of international human rights organizations, and the government has been urged to abide by its obligations under international human rights treaties.
The United States Commission on International Religious Freedom, in its 2020 Annual Report (also available in Azerbaijani and Russian) has recommended that the U.S. Department of State place Azerbaijan on its Special Watch List (SWL) for its ongoing and systematic religious freedom violations. The report further states that "Religious freedom in Azerbaijan remains severely impeded by problematic legislation, particularly the country’s 2009 law 'On Freedom of Religious Beliefs,' which the government has shown little interest in revising."
In two separate decisions in January, February and June 2021, the European Court of Human Rights (ECHR) ruled the government had violated the religious freedom rights of five individuals by subjecting them to excessively long pretrial detention (between five and 10 months) under the European Convention on Human Rights and ordered it to pay compensation. In September, the ECHR accepted the government’s admission it had violated the rights of multiple Muslim individuals and Jehovah’s Witnesses to meet for worship or religious study at members’ homes.
In addition to the ECtHR cases, the United Nations (UN) Human Rights Committee has also found that Azerbaijan has violated human rights in freedom of religion or belief cases. Most recently, it found - in a decision issued on 26 April – that the regime had violated the rights of six Jehovah's Witnesses in Aliabad in the northern Zakatala District in September 2013. The six were among victims of a police raid, who were forcibly taken to the police station, had religious literature seized and were then fined (or in one case given an official warning).
Despite repeated international reactions due to growing restrictive regulations over the right to worship and rituals, the government of Azerbaijan continues to pass further repressive legal frameworks that restrict religious activity and further narrow the scope of religious freedoms in the country.
In May 2021, the Parliament of Azerbaijan has adopted a number of further restrictive amendments to the Law on Religious Freedom. The new amendments introduce a new requirement for the State Committee for Work with Religious Organisations to approve the appointment of all non-Islamic religious leaders. Only the Caucasian Muslim Board would be allowed to name Muslim clerics, but they would have to undergo re-attestation every five years with the involvement of State Committee officials.
The Religion Law amendments would close mosques and Islamic shrines when they do not have a state-controlled Muslim Board-appointed leader. They would allow non-Islamic communities to establish and apply for state registration of a religious centre (headquarters), but only if they have at least five registered communities in at least five different towns or districts. Most non-Islamic communities would struggle to achieve this. Non-Islamic communities without a "religious centre" would not be allowed to grant religious titles or ranks to the clergy, and would have to apply for permission to have foreign citizens as religious leaders, establish religious educational establishments, or organize visits by their adherents to shrines and religious locations abroad. Tighter restrictions would be imposed on mass religious events outdoors.
 Right to worship and religious rituals are protected under the Constitution Article 48 of The Constitution of Azerbaijan states that everyone has the right to freedom of conscience, and everyone has the right to freely determine his own approach to religion, to profess individually or together with others any religion or to profess no religion, and to express and disseminate his beliefs concerning his approach to religion. The third paragraph of Article 48 of the Constitution provides that religious rituals may be freely performed if they do not disturb public order and are not contrary to public morals. See the Constitution (in English) at https://static2.president.az/media/W1siZiIsIjIwMTgvMDMvMDkvNHQzMWNrcGppYV9Lb25zdGl0dXNpeWFfRU5HLnBkZiJdXQ?sha=c440b7c5f80d645b
 Article 18. Of the Constitution
 The U.S. Commission on International Religious Freedom (USCIRF) press-release: https://www.uscirf.gov/news-room/releases-statements/uscirf-releases-country-update-azerbaijan
The U.S. Commission on International Religious Freedom (USCIRF) is an independent, bipartisan federal government entity established by the U.S. Congress to monitor, analyze, and report on religious freedom abroad. USCIRF makes foreign policy recommendations to the President, the Secretary of State, and Congress intended to deter religious persecution and promote freedom of religion and belief.
2. Freedom of religious worship and rituals: does national legislation complying international standards?
The key international provisions dealing with freedom of religion or belief begin with Article 18 the Universal Declaration of Human Rights, which provides:
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."
The Universal Declaration's commitment to the fundamental right of freedom of religion or belief was embodied in Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Because this Covenant is a legally binding treaty obligation for States Parties to it which include most of the UN members, it is both somewhat more concrete, and more careful to note the limitations on freedom of religion or belief. Article 18 of the Covenant provides:
- "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching."
While religion can be an intensely private matter for some, it is fair to say that most religions cannot be practiced in isolation. Thus, the instruments stress that the right involves freedom "either alone [or individually] or in community with others and in public or private" to manifest one's religion in four broad areas vital to religious experience, namely "worship, observance, practice and teaching."
In other words, the right to freedom of thought, conscience, religion or belief includes the freedom "to worship or assemble in connection with a religion or belief and the concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the use of ritual formulae, and objects. Human Rights Council resolution (6/37) urges States, "To exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights and humanitarian law, to ensure that religious places, sites, shrines and symbols are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction;". Human Rights Committee general comment 22, Para . 4 provides that "the concept of worship extends to [...] the building of places of worship" as well.
Article 9 of the European Convention on Human Rights provides a right to freedom of thought, conscience and religion. Article 9 of the Convention list various forms which the manifestation of a religion or belief can take, namely worship, teaching, practice and observance (Güler and Uğur v. Turkey, § 35) and the right also subjects to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This means that Article 9 protects the right of believers to meet peacefully in order to worship in the manner prescribed by their religion (The Church of Jesus Christ of Latter-Day Saints v. the United Kingdom; Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey, § 41).
The Law of the Republic of Azerbaijan On freedom of religious beliefs (1992) (hereinafter as “the Basic Law) guarantees the right to express and disseminate his opinions in connection with the attitude to religion and prohibits to put any obstacles to the expression by any person of his religion, his participation in worship, religious rites and ceremonies or the study of religion (Article 1).
The basic law on religious freedom imposes quite a number of restrictions on the right to perform religious worship and rituals. Analysis of the compliance of these restrictions with the requirements of international legal instruments raises some open questions about national legislation’s compliance with those standards.
As regards Article 9 of the ECHR, in principle, States enjoy a wide margin of appreciation in deciding whether and to what extent a restriction on the right to manifest one’s religion or beliefs is “necessary”. Nevertheless, the Convention requires to balance with the interests and rights covered under article 9 of the Convention to preserve genuine religious pluralism, which is vital for the survival of any democratic society.
Sixth Paragraph of the Basic Law stipulates that the coverage of the basics of religious teaching during mass religious worship, rites and ceremonies may be carried out only by religious figures appointed in accordance with this Law. Article 6-1 of the Basic Law also limits the places of worship, rituals and ceremonies (except for funerals, mourning) with the places of religious worship and shrines and requires an obtaining of consent from the relevant executive power to organize a mass religious worships and rituals outside of religious worship places and shrines.
The Basic Law also provides that citizens of the Republic of Azerbaijan who have received religious education abroad to obtain a consent from the Caucasian Muslims Office to perform Islamic rites and ceremonies in coordination with the relevant executive authority. Azerbaijani Law on Religious Freedom The law restricts the use of religious symbols and slogans to inside places of worship. Such blanked prohibitions are not in compliance with the international standards that provide that the limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein (Eweida and Others v. the United Kingdom, § 80).
Seventh paragraph of the Article 1 of the Basic Law indicates that activities aimed at promoting religious extremism, as well as the use of inter-religious and inter-religious differences for political purposes, are prohibited. This also raises another concern because of problematic concepts mentioned in the Law on Combating Religious Extremism which open to wide interpretation and misuse. Thus, article 184.108.40.206 of the Law on Combating with the Religious Extremism refers to "forcing someone to practice any religion (religious belief), including performing religious ceremonies and rituals as well as to religious education" as another act of religious extremism, which is equally problematic and may collide with the idea of spreading ideas of religious beliefs and inviting others to join, as a part of exercising freedom of religion, subject to interpretation of the two concepts by the authorities, in absence of any criteria or clear terms in place. As the ECtHR has ruled, freedom of religion and the freedom to change religion in particular cover activities aimed at persuading others to change religion.
The state imposes restrictions on the construction, protection, and use of places of worship. According to article 29 of the Basic Law on Religious Freedom, the State Committee Works with the Religious Organizations has the authority to approve the establishment of a new place of worship or the re-establishment of an existing place of worship. In absence of approval, the place of worship is declared illegal and any such action entails administrative liability. According to the case-law of the ECtHR, if a religious community cannot have a place of worship, its right to manifest its religion is rendered devoid of all substance (Association de solidarité avec les témoins de Jéhovah and Others v. Turkey, § 90). In some cases the fact that religious meetings in certain places are authorised or simply tolerated de facto by the domestic authorities may be insufficient to eliminate any risk of interference (ibid., § 107).
 1981 Declaration of the General Assembly and Human Rights Committee general comment 22. Para., 4
 Kokkinakis v. Greece, Application no. 14307/88. Para. 31. The Court notes that “According to Article 9 (art. 9), freedom to manifest one’s religion is not only exercisable in community with others, "in public" and within the circle of those whose faith one shares, but can also be asserted "alone" and "in private"; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through "teaching", failing which, moreover, "freedom to change [one’s] religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.”
See also Venice Commission CDL-AD(2012)016 Opinion on the Federal Law on Combatting Extremist Activity of the Russian Federation, §40
 According to Article 394.0.40 of the Code of Administrative Offences, construction of a place worship(liturgy) or reconstruction of the existing place of worship without the consent of the relevant executive authority,is punished by fine for individuals ranging from three hundred to five hundred manats, for officials from one thousand five hundred to two thousand five hundred manats, an for legal entities in the amount of fifteen thousand to twenty five thousand manats.
3. Concluding remarks
Analysis of domestic legislation, including its application by national authorities reveal that there are quite a massive restriction and of measures adopted by the local authorities preventing individuals to enjoy their rights to religious freedom.
The main concerns raise is stemming from the restrictive normative legal acts that presents blanked prohibitions with unclear conceptions and weak, in some cases even without procedural guarantees. Such problematic legislation has also aggravated impacts due to lack of independent judicial review and civil society control of the actions of state authorities.
The state enjoys a wide discretion over the regulation of religious freedom in the absent of independent oversight mechanisms capable to assess the proportionality of those interferences in the exercise of freedom of religion. And it needs to address these specific gaps and challenges in regard to the elimination of restrictive provisions in the Basic Law on Religious Freedom, including other normative legal acts in order to ensure right religious freedom in compliance with the international standards.
Despite recent stand and policy of the state to further restrict freedom of religion, in particularly limiting the right to exercise worships and rituals with problematic regulations, Azerbaijani government must recognize the need of amending its rigid and unacceptable policy against religious freedoms in the country. Because, beyond the Constitution, freedom of thought, conscience and religion is quite obviously guaranteed under many international legal documents which Azerbaijan is party.
The government should take into account of the increasing number of individual and a group of cases are being sent to the international courts. It worth to note that as much as restrictive and problematic legislation are continued to be in place and applied in a discriminatory and abusive manner, there will be more complainants from Azerbaijan before international rights protection mechanisms. The government must recognize the importance of freedom of thought, conscience and religion that is considered as one of the foundations of democratic society.
In addition, it worth to note that it is also undermines the long-standing policy of the Azerbaijani government on religious tolerance and multiculturalism and self-praising the country as a place where different religious groups can coexist. It would be unreasonable to expect any significant results by spending large resources in this area while continue to repress religious rights and freedoms in the country.