CASE OF THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA
(Application no. 72881/01)
5 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of the Moscow Branch of the Salvation Army v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
B. Refusal to grant re-registration to the applicant branch
“...Article 6 of the Charter provides that members of the Branch shall include supporters, soldiers, local officers and officers headed by the Officer Commanding appointed from London. Members of the Branch wear uniform and perform service, which means that the Branch is a paramilitary organisation.
Pursuant to Presidential Decree no. 310 of 23 March 1995 'On Measures to Secure Co-ordinated Actions by State Authorities in the Fight against Fascism and Other Forms of Political Extremism in the Russian Federation', no paramilitary formations may be established in the Russian Federation.
We do not consider the use of the word 'Army' in the name of a religious organisation to be legitimate. The Large Encyclopaedic Dictionary defines the meaning of this word as: 1. The totality of a State's armed forces...”
As to the remainder, the Moscow Justice Department repeated and elaborated on the grounds for refusal set out in the letter of 16 August 1999.
“In the course of the analysis of the Charter1, certain provisions stood out, on the one hand, as being full of barrack-room discipline, with the unquestionable subordination of the members of the religious organisation to its management and, on the other hand, as relieving the management and the organisation as a whole of any responsibility for the activities of its members. Thus, according to Article 6 § 3 of the Charter, 'the members of the Branch shall act in compliance with The Salvation Army's Orders and Regulations and with the instructions of the Officer Commanding', ... 'the Branch as a whole shall not be liable for infringements of the legislation of the Russian Federation perpetrated by individual members of the Branch'. This wording of the Charter leads one to conclude that the Charter assumes that the members of the organisation will inevitably break Russian law in the process of executing the Salvation Army's Orders and Regulations and the instructions of the Officer Commanding... The Branch excludes its liability for illegal service activity of its members.”
Thirdly, the court pointed out that the grounds for judicial liquidation of the applicant branch, as described in its articles of association, were inconsistent with those laid down in Russian law. Lastly, the court held that the applicant branch did not disclose its objectives because the articles of association failed to describe “all decisions, regulations and traditions of The Salvation Army”.
“The arguments that [the applicant] is not a paramilitary organisation does not undermine the [first-instance] court's findings that the Branch is a representative office of a foreign religious organisation, The Salvation Army, and that the documents submitted for re-registration do not conform to the requirements of Russian law”.
“...in the Central part of Russia the international religious organisation The Salvation Army is expanding its activities. Its followers attempt to influence the youth and the military. The Salvation Army formally represents the Evangelical Protestant branch of Christianity, however, in essence, it is a quasi-military religious organisation that has a rigid hierarchy of management. The Salvation Army is managed and funded from abroad.”
The applicant branch submitted that this extract was copied verbatim from an information sheet prepared by the Federal Security Service of the Russian Federation and forwarded to the Ministry of Education on 29 May 2000.
C. Proceedings for dissolution of the applicant branch
D. The effect of the refusal to grant re-registration
E. Articles of association of the applicant branch
§ 1 – General provisions
“(1) 'The Religious Association called the Moscow Branch of The Salvation Army', a non-commercial charitable organisation, was established by its first members... with the aim of professing and advancing the Christian religion...
(2) The first members are parties who uphold the Articles of Faith of The Salvation Army as set out in Schedule I hereto...
(3) The Branch shall be part of The Salvation Army international religious organisation and shall be subordinate thereto.
(5) The religious activities of the Branch shall be determined according to the Articles of Faith of The Salvation Army as an evangelistic Christian church.”
§ 2 – Objectives, tasks and forms of activity
“(1) The objectives of the Branch shall be the advancement of the Christian faith, as promulgated in the religious doctrines which are professed, believed and taught by The Salvation Army, the advancement of education, the relief of poverty and other acts of charity...”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation
B. The Religions Act
“- aims and activities of a religious organisation contradict the Russian Constitution or Russian laws – with reference to specific legal provisions;
- the organisation has not been recognised as a religious one;
- the articles of association or other submitted materials do not comply with Russian legislation or contain inaccurate information;
- another religious organisation has already been registered under the same name;
- the founder(s) has (have) no capacity to act.”
“- breach of public security and public order, undermining of State security;
- actions aimed at a forcible change of the foundations of the constitutional structure or destruction of the integrity of the Russian Federation;
- formation of armed units;
- propaganda of war, incitement to social, racial, ethnic or religious discord or hatred between people;
- coercion to destroy the family;
- infringement of the personality, rights and freedoms of citizens;
- infliction of harm, established in accordance with the law, on the morality or health of citizens, including the use of narcotic or psychoactive substances, hypnosis, commission of depraved and other disorderly acts in connection with religious activities;
- encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life- or health-threatening conditions;
- interference with the receipt of compulsory education;
- coercion of members and followers of a religious association and other persons to alienate their property for the benefit of the religious association;
- hindering a citizen from leaving a religious association by threatening harm to life, health, property, if the threat can actually be carried out, or by application of force or commission of other disorderly acts;
- inciting citizens to refuse to fulfil their civil duties established by law or to commit other disorderly acts.”
C. Procedure for registration of legal entities
D. Representative offices of foreign religious organisations
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“95. The Russian Constitution safeguards freedom of conscience and of religion (article 28); the equality of religious associations before the law and the separation of church and state (article 14), and offers protection against discrimination based on religion (article 19). The law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new federal law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions.
96. ...In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many articles of the 1997 law 'On Freedom of Conscience and Religious Associations' do not meet Russia's international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended.
97. In its preamble the law recognises 'the special role of Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life' and respects 'Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia'...
98. According to the regulations by the Ministry of Justice, - responsible for the implementation of the law on freedom of conscience and religious associations -, religious organisations established before the law came into force (26 September 1997) had to re-register before 31 December 2000.
99. The registration process was finally completed on 1 January 2001 as the State Duma decided to extend the deadline twice. About 12 000 religious organisations and groups have been registered, and only 200 were refused their registration, most of them because they failed to produce a complete file. Many others have, for a variety of reasons, failed to register. The Minister of Justice, Mr Chaika strongly rejected allegations that the Orthodox Church had exerted pressure on the Ministry to prevent some religious organisations from obtaining their registration. Mr Chaika also indicated that experts of the Ministry had 'closely examined' the status of the Salvation Army and the Jehovah's Witnesses, and had come to the conclusion that nothing prevented [their] registration at the federal level.
100. The Salvation Army, which feeds around 6,000 Russians every month in the winter, has had to waste tens of thousands of dollars in legal fights over registration, and the Catholic church (as well as the Jewish community) has had trouble getting visas for its foreign clergy. Some other religious organisations have also been prevented from being registered at the local level: the Adventist Church, the Pentecostal Church, the Baptists, the Evangelist Church and other churches in particular in Tatarstan, in the region of Rostov and in Vladimir oblast. These religious organisations also voiced complaints that they had serious difficulties to settle, to build or buy their places of worship, or to recover confiscated properties. Some among them – e.g. the True Orthodox Church, the Union of Evangelists Pentecotists – have claimed that they suffered from repeated harassment by the authorities.
101. Indeed, there have been cases where, even if a religious organisation had re-registered nationally, local authorities created obstacles...
103. Although on 22 February 2001, the Russian Justice Ministry finally re-registered the Salvation Army in Russia, at federal level, registration had been constantly denied to the Moscow chapter of this religious organisation by the Chief Directorate of the Ministry of Justice in Moscow, and appeals to the various courts in Moscow failed. Moreover, in April 2001, dissolution procedures were put in place to close down Salvation Army Corps and social programs within Moscow, and on 11 September 2001 the Tagansk[iy] intermunicipal court ruled that the Moscow chapter was subject to dissolution on the basis of article 27 of the 1997 federal law. (It provides for the dissolution of the legal entity that did not reregister by the 31 December 2000 deadline.)
104. The co-rapporteurs are very surprised and puzzled by the decision to ban the operations of the Salvation Army in Moscow, and they would highly appreciate the clarification of this matter by the Russian authorities. In this respect, they refer to the Monitoring Committee's call on Russia of 6 September 2001 to ensure that the Salvation Army enjoys the same rights as it has in other member states of the Council of Europe, including the right to be registered in Moscow. During their fact-finding visit in November 2001, the co-rapporteurs used every opportunity to stress the need for a solution, and the potential embarrassment this problem may cause for Russia.”
“8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities:
xiv. the Assembly regrets the problems of the Salvation Army and Jehovah's Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end; ...”
“1. The new Russian law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian law – generally considered very liberal – on the same subject. The new law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities' re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain. ...
5. Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at federal level. The federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within the ministry. The case of the Moscow branch of the Salvation Army deserves particular attention in this respect, and should lead to an internal disciplinary inquiry by the federal Ministry of Justice into the workings of its Moscow department. The Moscow Department of Justice tried to close down this branch of the Salvation Army (despite federal registration), for allegedly failing to re-register by the law's deadline. The Constitutional Court ruled in favour of the Salvation Army on 7 February 2002.
6. Therefore, the Assembly recommends to the Russian authorities that:
i. the law on religion be more uniformly applied throughout the Russian Federation, ending unjustified regional and local discrimination against certain religious communities and local officials' preferential treatment of the Russian Orthodox Church, and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from the Russian Orthodox Church;
ii. the federal Ministry of Justice become more proactive in resolving disputes between its local/regional officials and religious organisations before disputes are brought before the courts, by taking remedial action within the ministry in case of corruption and/or incorrect implementation of the law on religion, thus rendering it unnecessary to take such cases to the courts...”
I. ALLEGED VIOLATION OF ARTICLES 9 AND 11 OF THE CONVENTION
“1. 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 worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 11 provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”
A. Arguments by the parties
1. The Government
2. The applicant
B. The Court's assessment
1. General principles
2. The applicant's status as a “victim” of the alleged violations
3. Existence of interference with the applicant's rights
4. Justification for the interference
(a) General principles applicable to the analysis of justification
(b) Arguments put forward in justification of the interference
(i) “Foreign origin” of the applicant branch
(ii) Religious structure of the applicant branch
(iii) Further considerations relevant for the Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLES 9 AND 11
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 5 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
1. That is, the applicant’s articles of association.