(Applications nos. 76836/01 and 32782/03)
This version was rectified on 3 December 2009
under Rule 81 of the Rules of the Court
1 October 2009
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 Kimlya and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 10 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Attempted registration of the Church of Scientology of Surgut
“You have failed to produce a document issued by a local authority certifying that the religious group has existed in the given territory for no less than 15 years, or a document issued by the managing body of a centralised religious organisation certifying that the religious group is a branch of such an organisation, and this does not comply with the requirements of section 11 § 5 of the Federal Law on freedom of conscience and religious associations.
The refusal of registration does not prohibit a subsequent fresh application for registration provided that the grounds for the refusal have been removed.”
B. Attempted registration of the Church of Scientology of Nizhnekamsk
“[The second applicant] considers that the refusal of registration was unlawful and that it violated his right to freedom of conscience and religion. The court cannot agree... Neither [the second applicant] nor anyone else is prohibited or prevented from professing Scientology individually or in community with others. The refusal to grant legal-entity status to an organisation may only violate a citizen's right to freedom of association...
The court has established that persons professing Scientology appeared in the town of Nizhnekamsk in the late 1990s. In 1999 the group comprising [the second applicant] decided to establish the religious organisation Church of Scientology of Nizhnekamsk and register it as a legal entity... The registration chamber refused registration by reference to the absence of an opinion resulting from a religious expert examination. [The second applicant] complained to a court... While the case was being examined, the power to approve registration of the religious organisation was transferred to the Justice Department, which ... left the application for registration unexamined, referring to the fact that the religious group had existed in the town of Nizhnekamsk for less than 15 years...
The ground preventing registration is the fact that the religious group has existed for less than 15 years. Admittedly, pursuant to section 11 of the Religions Act, this ground can be invoked to leave the application unexamined rather than to refuse registration; however, in either case registration of the organisation is not possible. Hence, given that the outcome of the decision by the registration chamber is correct (the organisation may not be registered), the court cannot use a formal pretext to require the Justice Department to breach the Religions Act and register the organisation, especially taking into account that [the Justice Department] has already corrected the registration chamber's mistake and issued a decision in conformity with the Religions Act.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
B. Religions Act
1. Enactment of the new Religions Act
“Nevertheless, I will remind you of the essence of this law. It is this: the law will create a barrier on the path to religious expansion in Russia, it will hinder the development of totalitarian sects and restrict the activities of foreign missionaries, while at the same time creating conditions for the activities of our traditional religions and confessions ... We are confident that the application of this law in practice will help to resolve problems being faced now by society, the State and the [Russian Orthodox] Church ... I would like to refer to the fact that it is noteworthy that all the confessions whose representatives [objected to certain provisions of the law] have their headquarters overseas. I say that to those who today feel that our law is unfit and are planning to vote against it. And I want to put this question to you: whose side are you on, dear colleagues?”
the right to obtain tax exemptions and other benefits, and financial and other forms of aid for the restoration, maintenance and protection of historically important buildings and religious items and for teaching in educational institutions (section 4 § 3);
the right to establish educational institutions and, with the consent of the parents and children, to teach religion in extracurricular courses (section 5 §§ 3 and 4);
the right to establish and maintain religious buildings and other places for worship or pilgrimage (section 16 § 1);
the right to perform religious rites, on invitation, in health centres, hospitals, children's homes, old people's homes, facilities for the disabled and prisons (section 16 § 3);
the right to manufacture, acquire, export, import and distribute religious literature, printed, audio and video material and other religious articles (section 17 § 1);
the right to carry out charitable activities on their own or through charitable foundations established by them (section 18 § 1);
the right to create cross-cultural organisations, educational institutions and mass media (section 18 § 2);
the right to establish and maintain international links and contacts for pilgrimages, conferences and so on, including the right to invite foreign nationals to the Russian Federation (section 20 § 1);
the right to own buildings, plots of land, other property, financial assets and religious artefacts, including the right to have municipal and State property transferred to them free of charge for religious purposes and the immunity of such property from legal charge (section 21 §§ 1 to 5);
the right to use State and other property for religious purposes, such right to be granted free of charge (section 22);
the right to establish companies and engage in business activities (section 23); and
the right to hire employees (section 24).
the right to found companies publishing religious literature or producing articles for religious services (section 17 § 2);
the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff (section 19 § 1); and
the right to invite into the Russian Federation foreign nationals planning to engage in professional religious activities, including preaching (section 20 § 2).
3. Registration of a religious organisation
C. Case-law of the Russian courts
“4. ... Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law. By virtue of these provisions the federal legislature ... may regulate the legal status of religious associations, including the conditions for granting the status of a legal entity, and the procedure for their founding, establishment and State registration, and determine the scope of the rights of religious associations.
Having regard to Russia's history of pluriconfessionalism, legislators must respect the provisions of Article 17 § 1 of the Russian Constitution, which guarantees the rights and freedoms of men and citizens in accordance with generally accepted principles and norms of international law and the Russian Constitution. Measures decreed by legislators relating to the founding, establishment and registration of religious organisations must not interfere with the essence of the freedom of religion, the right to freedom of association and the freedom of activity of public associations, and any potential restrictions on those and other constitutional rights must be justified and proportionate to aims considered important by the Constitution.
In a democratic society with its characteristic pluralism, as follows from ... Article 9 § 2 of the Convention ..., restrictions may be prescribed by law if this is necessary in the interests of public peace and the protection of public order, health and morals or for the protection of the rights and freedoms of others. The State has the right to lay down certain barriers in order not to automatically provide legal status [to religious associations], not to allow the legalisation of associations of citizens that violate human rights and commit illegal and criminal acts, and in order to obstruct missionary activity (including the problem of proselytism) if it is not compatible with respect for the freedom of thought, conscience and religion of others and other constitutional rights and freedoms, as in the case of the recruitment of other members into the church, or unlawful influence on people in need or poverty, through psychological pressure or the threat of violence. In particular, this is emphasised in the Resolution of the European Parliament of 12 February 1996 on sects in Europe and Recommendation no. 1178 (1992) of the Council of Europe on sects and new religious movements, as well as in the judgments of the European Court of 25 May 1993 ([Kokkinakis v. Greece], Series A no. 260-A) and of 26 September 1996 ([Manoussakis and Others v. Greece], Reports of Judgments and Decisions 1996-IV), which clarify the nature and scope of the State's obligations flowing from Article 9 of the Convention...
8. ... Pursuant to ... the RSFSR Religions Act (as amended on 27 January 1995), all religious associations – both regional and centralised – had, on an equal basis, as legal entities, the rights that were subsequently incorporated in the [1997 Religions Act]...
Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them, solely on the basis that they did not have confirmation that they had existed for 15 years. In relation to religious organisations created earlier, that would be incompatible with the principle of equality enshrined in Article 13 § 4, Article 14 § 2 and Article 19 §§ 1 and 2 of the Constitution of the Russian Federation, and would be an impermissible restriction on freedom of religion (Article 28) and the freedom of [voluntary] associations to form and to carry out their activities (Article 30)...”
2. Chelyabinsk Regional Court
“Article 28 of the Russian Constitution, read in conjunction with Article 13 § 4, Article 14, Article 19 §§ 1 and 2 and Article 30 § 1, shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law...
Religious groups may carry out their activities without State registration or the legal status of a legal entity. However, if citizens form a religious group for the purpose of making it into a religious organisation later on, then they must notify the local self-government body of its formation and the commencement of its activities...
The aforementioned provisions show that nothing legally hinders a religious association from being formed and operating without State registration for the purpose of joint profession and dissemination of faith. However, in such circumstances a religious association will not have the status of a legal entity and cannot therefore enjoy the rights and privileges secured to religious organisations in the [Religions Act] (section 5 §§ 3 and 4, section 13 § 5, sections 15-24), that is, those collective rights that citizens exercise in community with others, namely within a religious organisation that has legal-entity status, but not on an individual basis or through a religious group.
Therefore, the very fact that the local religious organisation was unlawfully refused registration hinders Mr K. and his fellow believers from exercising their constitutional rights...”
“A number of provisions of the Act are inconsistent with principles set forth in international legal instruments, and, accordingly, can be contested by citizens when lodging complaints with the European Court of Human Rights. In essence, these provisions cannot operate in the territory of the Russian Federation, since the rules established by international treaties [must] prevail over domestic legislation, as is envisaged by the Constitution of the Russian Federation (Article 15 § 4)...
The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. In accordance with section 7 § 1 of the Act, religious groups, in contrast to religious [organisations], are not subject to State registration and do not enjoy the rights of a legal entity.
Furthermore, the Act discriminates between 'traditional' religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least 15 years (section 9 § 1 of the Act). 'Non-traditional' religions are deprived of many rights...”
“Among the commitments undertaken by Russia upon entry into the Council of Europe was to bring its legislation on freedom of conscience and religion into line with European norms. The [Religions Act], enacted on 26 September 1997 after the Russian Federation had joined the Council of Europe, did not take into consideration the existing rules or universally recognised principles of international law.
As a Contracting Party to the European Convention on Human Rights, Russia assumed express obligations in the sphere of freedom of conscience and religion. A number of provisions of the [Religions Act] are contrary to principles established in the European Convention for the Protection of Human Rights and Fundamental Freedoms and, accordingly, may be challenged by citizens when lodging applications with the European Court of Human Rights...
A number of provisions of the Act establish rules that in essence discriminate against certain religions in practice. The distinction between religious organisations and religious groups provided for in the Act is contrary to both the European Convention and the case-law of the Convention bodies, which are an important source of European law. Furthermore, the Act discriminates between 'traditional' religious organisations and religious organisations that do not possess a document proving their existence in a given territory for at least 15 years (section 9 § 1). 'Non-traditional' religions are deprived of many rights...
In the current situation one cannot exclude [the possibility] of decisions of the European Court of Human Rights against Russia in cases connected with freedom of religion and religious beliefs.”
“26. Another of the commitments Russia entered into was to adopt a new law on the freedom of religion. Such a new law has indeed been adopted, but unfortunately, it seems to fall rather short of Council of Europe standards on the matter. ...
27. The new law on freedom of conscience and on religious associations entered into force on 1 October 1997, after having been revised following a presidential veto of the first version. While the law does provide adequate protection for an individual's right to profess or not to profess the religion of his choice, it contains some other provisions which seem to be inconsistent with international standards and with Russia's international treaty obligations. In particular, the law establishes two categories of religious associations: the more privileged 'religious organisations' and the less privileged 'religious groups'. Religious groups, unlike religious organisations, do not have the status of a legal person, and do not enjoy the rights associated with this status, such as owning property, concluding contracts, and hiring employees. In addition, they are explicitly barred from operating schools or inviting foreign guests to Russia. Religious organisations have these rights, but to be recognised as such must be either classified as a 'traditional' religion or must have existed as a registered religious group on Russian territory for at least 15 years, the latter to be certified by the local authorities. In fact, with the entry into force of this law, a third category of religious associations was created: religious groups registered with the authorities on that day (for less than 15 years) who already enjoy the status of a legal person may keep this status and the associated rights, provided they re-register every year with the authorities. These provisions may lead to discriminatory treatment especially of non-traditional religions, thus undermining the principle of religious equality before the law. A revision of some of these provisions may be called for to ensure compliance with Council of Europe standards. ...”
“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. On 6 November 1997, Mr Atkinson and others presented a motion for a recommendation (Doc. 7957 which was referred to the Legal Affairs Committee by Reference 2238) in which they argued that this new legislation on freedom of conscience and religious associations contravened the European Convention on Human Rights, the Russian Constitution as well as the commitments entered into by Russia on accession. 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'. The law then goes on to draw a distinction between 'religious organisations', according to whether or not they existed before 1982, and a third category, called 'religious groups'. Religious organisations that had existed for less than fifteen years, and religious groups have been subject to legal and tax disadvantages and their activities have been restricted.”
“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.
2. The law itself, while posing an acceptable basis of operation for most religious communities, could still be ameliorated. Although the Russian Constitutional Court has already restricted the application of the so-called 'fifteen-year rule', which initially severely limited the rights of religious groups that could not prove their existence on Russian territory for at least fifteen years before the new law entered into force, the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups. ...”
“The most controversial duration requirement in the recent past is that adopted in the 1997 Russian Law on Freedom of Conscience and on Religious Associations. Unless affiliated with a centralized religious organization, a religious group under this law cannot acquire full religious entity status unless it has been in the country for fifteen years. What is strikingly unusual about this requirement is that to the best of our knowledge, at the time of its adoption, there were no other OSCE participating States that imposed a waiting requirement (other than document processing periods) with respect to base level entities... Russia has taken some steps to mitigate the discriminatory impact on smaller groups by minimizing the evidentiary burden required to demonstrate presence in the country for the required period, and by creating a limited entity status for religious groups waiting out their 15-year period. But problems remain for smaller groups or for congregations that have split off from the Moscow Patriarchate, and while limited entity status is better than nothing, it imposes significant constraints on a religious group's ability to expand.
Duration requirements of this type are clearly inconsistent with the OSCE commitment to grant religious groups at least base-level entity status. The wording of this commitment in Principle 16.3 of the Vienna Concluding Document recognizes that the precise form of legal personality varies from legal system to legal system, but access to some form of legal entity is vital to OSCE compliance. This is clearly violated by the refusal to register religious groups that do not satisfy the 15-year rule. The drafters of the Russian legislation apparently attempted to remedy this defect by creating limited entity status, but this also fails to satisfy the OSCE commitment, because the limited status does not confer rights to carry out important religious functions. Failure to grant such status constitutes a limitation on manifestation of religion that violates Article 9 of the ECHR. It can hardly be said that denial of entity status, simply due to an organization's failure to 'exist' under a preceding, anti-religious, communist government, 'is necessary in a democratic society' or a proportionate response to a legitimate state interest...”
“Religious association laws that govern acquisition of legal personality through registration, incorporation, and the like are particularly significant for religious organisations. The following are some of the major problem areas that should be addressed:
It is not appropriate to require lengthy existence in the State before registration is permitted;
Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned...”
“In accordance with article I of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.”
“The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.”
“4. The freedom to manifest religion or belief ... in worship, observance, practice and teaching encompasses a broad range of acts. 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 building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest... [T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.”
I. ALLEGED VIOLATION OF ARTICLES 9, 10, 11 AND 14 OF THE CONVENTION
Article 9: Freedom of thought, conscience and religion
“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 10: Freedom of expression
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others...”
Article 11: Freedom of assembly and association
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others...
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...”
Article 14: Prohibition of discrimination
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion, political or other opinion ... or other status.”
A. The Government's preliminary objection as to the non-exhaustion of domestic remedies
B. The applicable Convention provision and existence of an interference with the applicants' rights
1. Submissions by the parties
(a) The applicants
(b) The Government
2. The Court's assessment
(a) The applicable Convention provision
C. Justification for the interference
1. Submissions by the parties
(a) The applicants
(b) The Government
2. The Court's assessment
(a) Whether the interference was prescribed by law
(b) Whether the interference pursued a legitimate aim
(c) Whether the interference was necessary in a democratic society
D. Other alleged violations of the Convention
II. 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
• EUR 6,356.04 for the domestic and Strasbourg proceedings instituted by the first applicant;
• EUR 4,668.24 for the domestic and Strasbourg proceedings instituted by the second applicant and the applicant church;
• EUR 3,672.67 for outstanding legal fees due under contract with respect to litigation before the domestic courts and the Court.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) to each of the first and second applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 10,000 (ten thousand euros) to the applicants jointly in respect of costs and expenses, plus any tax that may be chargeable to the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 1 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
1 The following sentence was deleted:
“Many European countries, including Belgium, France, Germany and the United Kingdom, have refused to grant Scientology religious recognition, whereas such recognition has been otained through the courts in other States, such as Spain and Portugal”.