Background

In Sardar Babayev v Azerbaijan [2024] ECHR 88, the applicant, an Azerbaijani national and an imam, had obtained his religious education in Iran between 1991 and 2000. In 2000 he returned to Azerbaijan and had been preaching and conducting Friday prayers in the Masalli city mosque since 2009 [5].

In December 2015, a new Article 168-1 was added to the Criminal Code which criminalised the conduct of Islamic religious rites and rituals by citizens of the Republic of Azerbaijan who had obtained their religious education abroad [6], but he continued to preach and conduct Friday prayers at the mosque despite official warnings. Finally in 2017, he was prosecuted and convicted and sentenced to three years’ imprisonment; his subsequent appeals were unsuccessful [15-26].

The arguments

Before the ECtHR, he argued that his pre-trial detention had been unjustified, that the judicial review of his pre-trial detention had been inadequate, and that his right to the presumption of innocence at his trial had been impugned. His principal ground of appeal, however, was that his criminal conviction for preaching and conducting Friday prayers in a mosque had amounted to a violation of his rights under Articles 9, 10, 11 and 14 ECHR [62]. The Court concluded that his complaint did not raise a separate issue under Articles 10, 11 and 14 of the Convention and fell to be examined solely under Article 9 [62].

Mr Babayev argued that his criminal conviction for preaching and conducting Friday prayers had been an unjustified interference with his right to manifest his religion that had not been prescribed by law and had not been necessary in a democratic society [64].

The Government conceded that Mr Babayev’s criminal conviction had interfered with his right to manifest his religion; however, the ban had been prescribed by Article 168-1.3.1 of the Criminal Code and had pursued the legitimate aim of the protection of public order and the preservation of the conditions of “living together” as an element of “the protection of the rights and freedoms of others”. The aim of Article 168-1.3.1 was to prevent negative influences of foreign religious extremist and fundamentalist ideologies not recognising and threatening the rule of law, secularism, pluralism and the constitutionalism of democratic states, and to protect the public from the negative consequences of the dissemination of such ideologies [65]. It further argued that sharia was incompatible with democratic values and that the ban could be regarded as proportionate to the aim pursued [66].

The judgment

The Court accepted that the interference had been “prescribed by law” [69] and was prepared to proceed on the basis that the interference pursued the legitimate aim of the protection of public order [70]. As to whether or not the interference was “necessary in a democratic society, however, there had been no indication whatsoever that the rites conducted by Mr Babayev had

“contained any expressions or constituted any actions, such as, for example, seeking to spread, incite or justify hatred, discrimination or intolerance, or otherwise undermine the ideals and values of a democratic society. He was thus punished solely for failing to comply with new legal requirements introduced in December 2015 that were applicable to citizens of the Republic of Azerbaijan who had obtained their religious education abroad” [75].

While the Court was aware of the fundamental importance of secularism and religious tolerance to Azerbaijan, it could not accept the Government’s argument that Mr Babayev’s criminal conviction had been “necessary in a democratic society” on account of the State’s fight against religious extremism and its protection of democratic values [76]. Nor was it convinced that a ban preventing those who obtained their religious education abroad from conducting Islamic religious rites and rituals was an appropriate instrument with which to fight religious extremism [78]. The interference had not, therefore, been “necessary in a democratic society” for “the protection of public order” under Article 9 § 2 of the Convention [79] and there had accordingly been a violation of Article 9 [80].

Comment

The promotion of “living together”/”vivre ensemble” has been advanced in previous cases before the Court, most notably in SAS v France [2014] ECHR 695 [Nussberger and Jäderblom JJ dissenting] in which the Grand Chamber invoked it in support of its conclusion that France’s ban on the burqa was not a violation of Article 9. As we noted at the time, the majority judgment in SAS attracted a good deal of criticism – and nowhere in the Convention is “living together” mentioned as a justification for restricting the right to manifest. That said, however, that judgment is almost ten years old, and “living together” seems to be here to stay.