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KIMLYA AND OTHERS v. RUSSIA - 76836/01 (rectified on 3 December 2009) [2009] ECHR 1424 (1 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1424.html
Cite as:
57 EHRR 27,
[2009] ECHR 1424,
(2013) 57 EHRR 27
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FIRST
SECTION
CASE OF KIMLYA AND OTHERS v. RUSSIA
(Applications
nos. 76836/01 and 32782/03)
JUDGMENT
This version was rectified
on 3 December 2009
under Rule 81 of the Rules
of the Court
STRASBOURG
1 October
2009
FINAL
01/03/2010
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,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
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:
PROCEDURE
The
case originated in two applications (nos. 76836/01 and 32782/03)
against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Russian nationals, Mr
Yevgeniy Nikolayevich Kimlya and Mr Aidar Rustemovich
Sultanov (“the first and second applicants”), and a
Russian religious group, the Church of Scientology of Nizhnekamsk
(“the applicant church”), on 17 August 2001 and 2 October
2003 respectively.
The
applicants were represented before the Court by Mr P. Hodkin, a
lawyer practising in East Grinstead, United Kingdom, and also by
Ms G. Krylova and Mr M. Kuzmichev, lawyers practising
in Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
The
applicants complained, in particular, about the domestic authorities'
decisions refusing State registration of the applicants' religious
groups as legal entities.
By
a decision of 9 June 2005 the Court decided to join the applications
and declared them partly admissible.
The
Government, but not the applicants, filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant, Mr Kimlya, was born in 1977 and lives
in Surgut in the Khanty-Mansi Autonomous Region.
He is the president of the Church of Scientology of Surgut
City.
The
second applicant, Mr Sultanov, was born in 1965 and lives in
Nizhnekamsk in the Tatarstan Republic. He is a co-founder and member
of the Church of Scientology of Nizhnekamsk, a religious group
without legal entity status, who is the third applicant.
A. Attempted registration of the Church of Scientology
of Surgut
In
1994 the first centre for the study of Dianetics (the creed of the
Church of Scientology) opened in Surgut and obtained State
registration as a social non-governmental organisation under the name
of “Surgut Humanitarian Dianetics Centre”.
In 1995 a new Russian law on non-governmental
associations was enacted. It required all non-governmental
associations established before its entry into force to be
re-registered before 1 July 1999. The centre applied for
re-registration; however, its application was refused on 23 July
1999 on the ground that the aims of the organisation were religious
in nature. On 23 November 1999 the Justice Department of the
Khanty-Mansi Region (“the Justice Department”) sought a
court decision terminating the centre's existence.
The centre applied for registration as a
non-commercial partnership regulated by the Civil Code of the Russian
Federation. On 4 October 1999 the deputy mayor of Surgut Town Council
rejected the application, referring to the religious purposes of the
centre.
On
2 January 2000 the first applicant, in community with his fellow
believers, resolved to found the “Scientology Group of Surgut
City” and to hold regular services on Sundays. At a subsequent
meeting on 1 July 2000 the first applicant and other believers
passed a resolution to establish a local religious organisation, the
Church of Scientology of Surgut City (“the Surgut Church”).
On
15 August 2000 the ten founding members, including the first
applicant, applied to the Justice Department for registration as a
local religious organisation having the status of a legal entity.
On 14 September 2000 the Justice Department refused
registration in the following terms:
“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.”
On
17 October 2000 the first applicant appealed against that decision to
the Khanty-Mansi Town Court. He alleged that his constitutional right
to freedom of conscience had been violated and that his religious
group had been discriminated against. Lacking the status of a legal
entity, his religious group could not print, export or import
religious books or articles of worship, own property, carry out
charity programmes or found organisations for religious purposes.
On
25 December 2000 the Khanty-Mansi Town Court dismissed the complaint.
It held that the Justice Department had correctly refused
registration because the Surgut Church had failed to provide a
document confirming its existence for at least 15 years in the
region. As to the first applicant's reliance on the Constitution, it
held: “this reference ... is far-fetched and cannot be taken
into consideration.” No further justification was provided.
On
21 February 2001 the Khanty-Mansi Regional Court upheld the judgment
of 25 December 2000. The court repeated that the applicant's
references to the decision of the Constitutional Court and the
Russian Constitution were “groundless”.
Following
a request by the first applicant, on 18 January 2002 the Presidium of
the Khanty-Mansi Regional Court instituted supervisory-review
proceedings, quashed the contested judgments and remitted the matter
to the Town Court for a fresh examination. It noted that the Justice
Department should have “left the application unexamined”
until all the documents required by law had been produced.
On
16 May 2002 the Khanty-Mansi Town Court commissioned an expert study
of the religious teachings of the Surgut Church and stayed the
proceedings in the case. On 24 July 2002 the Khanty-Mansi Regional
Court upheld that decision on appeal.
On
22 November 2004 the Khanty-Mansi Town Court resumed the proceedings
and delivered a new judgment on the same day. It held that the
refusal to register the Surgut Church had been unlawful because in
the absence of a certificate showing its fifteen-year presence in the
region, the Justice Department should have left the application for
registration “unexamined”. It ordered the Justice
Department to register the Surgut Church.
On
18 January 2005 the Khanty-Mansi Regional Court quashed the judgment
in so far as it concerned the order to register the Surgut Church, on
the ground that the first applicant had not produced all the
documents required by the Religions Act, a circumstance which the
Regional Court considered to be an impediment to the registration of
the Surgut Church as a legal entity.
B. Attempted registration of the Church of Scientology
of Nizhnekamsk
On
28 October 1998 the second applicant and fellow believers resolved to
found the Church of Scientology of Nizhnekamsk as a local religious
group.
On
23 December 1999 the applicant church applied to the State
Registration Chamber of the Tatarstan Republic (“the
registration chamber”) for registration as a local religious
organisation.
In
a letter of 17 April 2000 the registration chamber informed the
second applicant that the term for registration had been extended for
six months from 13 January 2000 in order to allow the State
authorities to carry out a religious expert examination.
In
a letter of 7 September 2001 a deputy chairperson of the registration
chamber informed the president of the applicant church that the
application for registration had been rejected as “there [had]
so far been no conclusions from the religious expert examination to
which the applicant church's documents [had] been subjected”.
The
second applicant appealed to a court against the refusal of
registration.
On
21 December 2001 the Nizhnekamsk Town Court of the Tatarstan Republic
dismissed the second applicant's claim, arguing that there was no
actual dispute as the authorities had yet to carry out the religious
expert examination and the application for registration had yet to be
examined on the merits.
On
21 January 2002 the Supreme Court of the Tatarstan Republic (“the
Supreme Court”) quashed the judgment of 21 December 2001 and
remitted the claim to the Town Court for a fresh examination.
On
7 March 2002 the Town Court again dismissed the second applicant's
claim. It found that the refusal had been justified because internal
order no. 254 issued by the Ministry of Health of the Russian
Federation on 19 June 1996 prohibited the use of Scientology methods
in health services.
On
18 April 2002 the Supreme Court quashed the judgment of 7 March
2002 and remitted the matter to the Town Court. It found that the
absence of a religious expert examination was not a valid ground for
the refusal of registration and that an internal order issued by a
ministry was hierarchically subordinate to Russian laws and could not
have been relied upon to restrict citizens' rights.
On 28 May 2002 the Town Court granted the second
applicant's claim and found that the refusal to register the
applicant church had been unlawful. It noted that the application for
registration had been made in December 1999, but that “the
religious organisation [had] still not been registered owing to
contrived reasons, although the federal law contain[ed] an exhaustive
list of grounds on which registration [could] be refused”. It
also held that there was no doubt as to “the religious nature
of the organisation being registered”, that a religious expert
examination was not mandatory and that the absence of such an
examination could not be cited as a ground for refusing registration
as this would encroach on citizens' rights. On 4 July 2002 the
Supreme Court upheld the judgment.
In
the meantime, on 1 July 2002 the power to approve the registration of
religious organisations was transferred from the registration chamber
to the Main Department of the Ministry of Justice of the Tatarstan
Republic (“the Justice Department”). Accordingly, on 25
July 2002 the application for registration of the applicant church
and related documents were also transferred to the Justice
Department.
On
13 August 2002 the Town Court forwarded a copy of its judgment of 28
May 2002 to the Justice Department for execution. However, the
Justice Department refused to proceed with the registration on the
ground that it was not the legal successor to the registration
chamber.
The
second applicant asked the Town Court to clarify the judgment of 28
May 2002 specifically as to which authority was to execute the
judgment in view of the fact that the power of the registration
chamber to register religious organisations had been transferred to
the Justice Department with effect from 1 July 2002 further to a
change in the law.
On
4 September 2002 the applicant church again requested the Justice
Department to grant it legal-entity status, pursuant to the judgment
of 28 May 2002.
On
10 October 2002 the Town Court held that no clarification of the
judgment was required as “no ambiguity could be found in the
judgment”. It also noted that, in the event of improper
execution of a court judgment or a violation of the second
applicant's rights by other State officials, he could lodge a
complaint with a court on “general grounds”.
The
second applicant appealed against the decision of 10 October 2002 to
the Supreme Court. However, it appears that the appeal was never
examined as by that time the case file had been forwarded to the
President of the Supreme Court of the Tatarstan Republic in
connection with the application for supervisory review lodged by the
Justice Department (see below).
On
14 October 2002 the second applicant sued the Justice Department for
its failure to comply with the final judgment of 28 May 2002 and to
register the applicant church. It appears that this action was
subsequently stayed in connection with the supervisory-review
proceedings described below.
On
16 October 2002 the head of the Justice Department wrote to a
vice-president of the Supreme Court of the Tatarstan Republic,
requesting him to exercise his supervisory-review powers in respect
of the judgment of 28 May 2002 with a view to quashing it.
On
12 November 2002 the President of the Supreme Court lodged an
application for supervisory review with the Presidium of the court.
On 27 November 2002 the Presidium granted the application,
quashed the judgments of 28 May and 4 July 2002 and referred the
matter back for a fresh examination. It found that a religious expert
examination was a mandatory precondition for State registration of a
little-known religious organisation such as the applicant church.
On 28 November 2002 the Expert Council on State
Religious Evaluation of the Council on Religious Affairs, a body
attached to the Cabinet of Ministers of the Tatarstan Republic,
submitted its opinion concerning the applicant church further to a
request by the Justice Department. It concluded that Scientology was
a religion. However, it did not recommend registration of the
applicant church because it had only recently been established in the
Tatarstan Republic.
On
8 January 2003 the Justice Department ruled that the application for
registration should be left “unexamined” in the absence
of a document confirming the applicant church's presence in Tatarstan
for 15 years.
On 25 February 2003 the Town Court carried out a fresh
determination of the second applicant's claim. It found as follows:
“[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.”
On
3 April 2003 the Supreme Court upheld that judgment.
On
28 May 2003 the Town Court dismissed the second applicant's action
against the Justice Department for its failure to execute the
judgment of 28 May 2002 (see above). The court found that the
judgment in the second applicant's favour had been quashed by way of
supervisory-review proceedings and that the Supreme Court's final
judgment of 3 April 2002 had removed any basis for requiring the
Justice Department to register the applicant church. On 3 July 2003
the Supreme Court of the Tatarstan Republic upheld on appeal the
judgment of 28 May 2003.
In
October 2004, jurisdiction over the registration of religious
organisations was transferred to the newly created Federal
Registration Service. The second applicant sought registration from
the local office of this new body. On 18 February 2005 the Chief
Directorate of the Federal Registration Service for Tatarstan
declined to consider the matter, referring the applicant church to
the Justice Department's earlier refusals to register it on the basis
of the “fifteen-year rule”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Russian Federation
The
State guarantees equality of rights and freedoms of men and citizens
regardless of their individual characteristics, including religious
beliefs. The Constitution prohibits all forms of restrictions on
human rights on social, racial, national, linguistic or religious
grounds (Article 19).
Article
28 guarantees the right to freedom of religion, including the right
to profess any religion, either alone or in community with others, or
to profess no religion at all, to freely choose, hold and share
religious and other beliefs and to manifest them in practice.
B. Religions Act
1. Enactment of the new Religions Act
On
1 October 1997 the Federal Law on freedom of conscience and religious
associations (no. 125-FZ of 26 September 1997 – “the
Religions Act”) entered into force. It replaced the USSR
Religions Act of 1 October 1990 and the RSFSR Religions Act of
25 October 1990.
In
the preamble the Religions Act acknowledges “the special role
of [Eastern] 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”. Section 2 § 3 provides that
“nothing in the laws on freedom of conscience, freedom of
religion and religious associations may be interpreted as impairing
or infringing the rights of men and citizens to the freedom of
conscience and religion guaranteed by the Constitution of the Russian
Federation or enshrined in the international treaties to which the
Russian Federation is a party”.
At
the session of the State Duma of the Russian Federation (the lower
chamber of Parliament) on 19 September 1997 Mr V. Zorkaltsev,
chairman of the Duma committee on affairs of social and religious
associations and one of the drafters of the Law, spoke as follows
before the Law was put to the vote:
“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?”
2. Religious groups and religious organisations:
definitions and scope of rights
A “religious association” is a generic
term for any voluntary association of Russian nationals and other
persons permanently and lawfully residing in the territory of the
Russian Federation, formed for the purpose of joint profession and
dissemination of their creed, which performs services of worship,
religious rites and ceremonies, teaches its religion and guides its
followers (section 6 § 1). “Religious associations”
may take the form of either “religious groups” or
“religious organisations” (section 6 § 2).
A “religious group” is a voluntary
association of citizens for the profession and dissemination of
faith, which carries out its activities without State registration
and without obtaining legal personality (section 7 § 1). The
formation of a religious group, if its subsequent conversion into a
religious organisation is envisaged, must be notified to the
municipal authority (section 7 § 2). Religious groups have the
right to perform services of worship, religious rites and ceremonies,
to teach religion and to guide their followers (section 7 §
3).
In contrast to a religious group, a “religious
organisation” is a voluntary association of Russian nationals
and permanent residents of Russia, formed for the profession and
dissemination of faith and duly registered as a legal entity (section
8 § 1).
The following rights are conferred solely on religious
organisations:
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).
In addition, the following rights are explicitly
reserved to religious organisations, to the exclusion of other
non-religious legal entities:
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
Section 9 § 1 provides that a religious
organisation may be founded by no fewer than ten Russian nationals
united in a religious group that has confirmation from the local
administrative authority of its existence in the given territory for
no less than fifteen years or confirmation by a centralised religious
organisation of the same creed that it forms part of its structure. A
religious organisation must seek State registration from the local
department of justice (section 11 § 2).
If
the founders of a religious organisation fail to produce any of the
documents required by law, including the confirmation referred to in
section 9 § 1, the registration authority may leave their
application for registration unexamined and notify them of this
(section 11 § 9).
State
registration of a religious organisation may be refused, in
particular, if its purposes or activities contradict the Russian
Constitution or laws, or if the organisation's charter or other
founding documents do not comply with the requirements of Russian
laws. The refusal may be appealed against to a court (section 12).
C. Case-law of the Russian courts
1. Constitutional Court of the Russian Federation
Examining
the compatibility with the Russian Constitution of the requirement of
the Religions Act that all religious organisations established before
its entry into force should confirm that they have existed for at
least fifteen years, the Constitutional Court found as follows
(decision no. 16-P of 23 November 1999 in the case of Religious
Society of Jehovah's Witnesses in Yaroslavl and Christian
Glorification Church):
“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)...”
The
Constitutional Court subsequently confirmed this position in its
decision no. 46-O of 13 April 2000 in the case of Independent
Russian Region of the Society of Jesus, and decision no. 7-O of 7
February 2002 in the case of Moscow Branch of the Salvation Army.
On
9 April 2002 the Constitutional Court delivered decision no. 113-O in
the case of Zaykova and Others. The applicants in that case
belonged to the religious group “Church of Scientology of
Izhevsk City”, whose application for legal-entity status was
refused in the absence of a document confirming its presence in
Izhevsk for 15 years. The Constitutional Court noted that a religious
association was not prevented from being formed and operating without
State registration, but in such cases it could not enjoy the rights
and privileges secured only to religious organisations in section 5
§§ 3 and 4, section 13 § 5 and sections 15 to 24
(paragraph 2 of the decision). It declined, however, to consider the
constitutional issue because the applicants had not challenged the
refusal in a court of general jurisdiction.
2. Chelyabinsk Regional Court
Deciding on appeal on a complaint by a Mr K. against
the regional justice department's refusal to register the local
organisation of Jehovah's Witnesses as a legal entity (civil case
no. 4507), the Chelyabinsk Regional Court held as follows:
“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...”
D. Opinions of the Russian Ombudsman
On 22 April 1999 the Ombudsman of the Russian
Federation published his opinion of 25 March 1999 on the
compatibility of the Religions Act with the international legal
obligations of the Russian Federation. The opinion stated, inter
alia:
“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...”
On
20 May 2002 the Ombudsman issued a special report on Russia's
observance of its commitments entered into upon accession to the
Council of Europe. The report states, inter alia:
“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.”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The
information report of 2 June 1998 by the Committee of the
Parliamentary Assembly of the Council of Europe on the Honouring of
Obligations and Commitments by Member States of the Council of Europe
(“the Monitoring Committee” – doc. 8127) on
honouring of obligations and commitments by the Russian Federation
states, in so far as relevant:
“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. ...”
The
report of 26 March 2002 by the Monitoring Committee (doc. 9396)
on honouring of obligations and commitments by the Russian Federation
states, in so far as relevant:
“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.”
Resolution 1278 (2002) on Russia's law on religion,
adopted by the Parliamentary Assembly of the Council of Europe on 23
April 2002, noted, inter alia, the following:
“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. ...”
IV. RELEVANT INTERNATIONAL DOCUMENTS
The report “Freedom of Religion or Belief: Laws
Affecting the Structuring of Religious Communities”, prepared
under the auspices of the Office for Democratic Institutions and
Human Rights of the Organization for Security and Co-operation in
Europe (OSCE/ODIHR) for the benefit of participants in the 1999 OSCE
Review Conference, states, inter alia:
“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...”
The
Guidelines for Review of Legislation Pertaining to Religion or
Belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on
Freedom of Religion or Belief in consultation with the European
Commission for Democracy through Law (Venice Commission) and adopted
by the Venice Commission at its 59th Plenary Session (18-19 June
2004) and welcomed by the OSCE Parliamentary Assembly at its annual
session (5-9 July 2004), contain, inter alia, the following
recommendations:
“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...”
The
relevant provisions of the United Nations Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief, proclaimed by General Assembly Resolution
36/55 of 25 November 1981, read as follows:
Article 6
“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.”
Article 7
“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.”
The
relevant part of General Comment no. 22: The right to freedom of
thought, conscience and religion (Article 18), prepared by the
Office of the High Commissioner for Human Rights (30 July 1993,
CCPR/C/21/Rev.1/Add.4), reads as follows:
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9, 10, 11 AND 14 OF THE
CONVENTION
The
applicants complained that the distinction made
by law between religious groups and religious organisations, on the
one hand, taken together with the requirement to produce confirmation
of at least fifteen years' presence in a given territory in order to
obtain legal personality as a religious organisation, on the other
hand, had violated their Convention rights under Articles 9, 10
and 11, read alone or in conjunction with Article 14. The
invoked Convention provisions read as follows:
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
In
their submissions following the Court's decision as to the
admissibility of the application, the Government claimed that the
applicants could have avoided the legal requirement to prove the
fifteen-year existence of a religious group by joining a centralised
religious organisation before applying for re-registration. In that
way the applicants could have achieved their objectives within the
domestic legal system.
The Court reiterates that, according to Rule 55
of the Rules of Court, any plea of inadmissibility must, in so far as
its character and the circumstances permit, be raised by the
respondent Contracting Party in its written or oral observations on
the admissibility of the application (see, for example,
Prokopovich v. Russia, no. 58255/00, § 29, 18
November 2004, with further references). The Government's objection
did not form part of their submissions before the Court's decision as
to the admissibility of the application. Consequently, they are
estopped from raising the objection of non-exhaustion of domestic
remedies at the present stage of the proceedings. In any event, the
Court reiterates that an applicant is only required to have recourse
to such domestic remedies that are normally available and sufficient
in the domestic legal system (see, among other authorities, Aksoy
v. Turkey, 18 December 1996, §§ 51-52,
Reports of Judgments and Decisions 1996-VI). The Court has no
doubt that requiring an applicant to resort to a subterfuge, such as
changing the structure of a religious group for form's sake only,
with the sole purpose of circumventing a formal requirement of
domestic law, would not be a “normally available” remedy.
The
Court therefore dismisses 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
The
applicants noted that “religious groups”, as defined in
the Religions Act, could operate without State interference. However,
the status of a “religious group” entailed severe
restrictions on community religious practice. A “religious
group” had no legal personality; it could not acquire rights or
obligations, and it could not protect its interests in court. Given
the list of rights reserved to registered religious organisations in
sections 15-24 of the Religions Act – including such
fundamental aspects of “worship, teaching, practice and
observance” as the right to establish places of worship, the
right to hold religious services in other places accessible to the
public, and the right to produce and/or acquire religious literature
– a “religious group” was not a religious community
with any substantial rights or “autonomous existence”, an
issue which the Court had found to be “at the very heart of the
protection which Article 9 affords” (they cited Metropolitan
Church of Bessarabia and Others v. Moldova, no. 45701/99,
§ 118, ECHR 2001 XII).
In
the applicants' view, the imposition of restrictions on fundamental
aspects of the life of a religious community, such as the ability to
set up a place of worship or to produce religious literature, on the
sole ground that it could not prove that it had been in existence for
fifteen years, constituted interference with the “effective
enjoyment of the right to freedom of religion by all its active
members” under Article 9. Moreover, the Court's case-law
indicated that the right to form a legal entity was itself a
fundamental right guaranteed to all associations under Article 11,
religious or otherwise (they referred to Sidiropoulos and Others
v. Greece, 10 July 1998, § 40, Reports
1998 IV). The applicants had not merely been restricted in
choices of organisational form. Under Russian law, the only option
available to them if they wished to “form a legal entity in
order to act collectively in their field of mutual interest”
was to seek registration as a religious organisation, and they had
been refused that right.
(b) The Government
The
Government accepted that under Russian law, the scope of the rights
of “religious groups” was different from that of
“religious organisations” that had obtained legal-entity
status through State registration. However, in their submission, the
difference in the scope of rights was in no way connected with the
exercise of the rights to freedom of religion and association. The
founding of a religious group was a voluntary act by a group of
individuals. It did not require any special permission; notification
to the municipal authority sufficed. Accordingly, in the Government's
view, the matter fell outside the State's sphere of competence and
the applicants were free to exercise their rights without State
interference. “Religious groups” could celebrate
services, other religious rites and ceremonies, and also give
religious instruction and training to their followers.
2. The Court's assessment
(a) The applicable Convention provision
The Court observes that the question whether or not
Scientology may be described as a “religion” is a matter
of controversy among the member States.
It is clearly not the Court's task to decide in abstracto whether
or not a body of beliefs and related practices may be considered a
“religion” within the meaning of Article 9 of the
Convention. In the absence of any European consensus on the religious
nature of Scientology teachings, and being sensitive to the
subsidiary nature of its role, the Court considers that it must rely
on the position of the domestic authorities in the matter and
determine the applicability of Article 9 of the Convention
accordingly (see Church of Scientology Moscow v. Russia, no.
18147/02, § 64, 5 April 2007).
In
the instant case the Surgut centre of Scientology, which had been
initially registered as a non-religious entity, was eventually
dissolved on the ground that its activities were “religious in
nature”. Its subsequent application for registration as another
form of non-religious entity was rejected for the same reason (see
paragraphs 9 and 10 above). As regards the Nizhnekamsk Church of
Scientology, both the Town and Supreme Courts concurred on the
religious nature of the organisation. That conclusion was later
endorsed by the Expert Council on State Religious Evaluation of the
Tatarstan Council on Religious Affairs which determined that the
Scientology was a religion (see paragraphs 30 and 40 above). It
appears therefore that the national authorities were convinced of the
religious nature of both the Scientology groups to which the present
case relates.
Having
regard to the position of the Russian authorities, which have
consistently expressed the view that Scientology groups are religious
in nature, the Court finds that Article 9 of the Convention is
applicable in the case before it. Moreover, since religious
communities traditionally exist in the form of organised structures
and the first and second applicants' complaint concerns the alleged
restriction on their right to associate freely with their fellow
believers and the third applicant's right to ensure judicial
protection of the community, Article 9 must be examined in the light
of Article 11 of the Convention, which safeguards associative life
against unjustified State interference (see Religionsgemeinschaft
der Zeugen Jehovas and Others v. Austria, no. 40825/98,
§ 60, 31 July 2008; Metropolitan Church of Bessarabia and
Others, cited above, § 118; and Hasan and Chaush v.
Bulgaria, no. 30985/96, §§ 62 and 91,
ECHR 2000 XI).
(b) Existence of an interference
The
Court must first determine whether there was an interference with the
applicants' rights to freedom of religion and association. It
observes that, after complex and lengthy proceedings, the domestic
courts upheld at final instance the decisions of the registration
authorities by which the Surgut and Nizhnekamsk Churches of
Scientology had been refused registration as “religious
organisations” within the meaning of the Russian Religions Act.
The
Government maintained that there had been no interference with the
applicants' rights because the first and second applicants had been
able to join together for religious purposes in a different
organisational form, that of a “religious group”, in
which the third applicant existed and for which no approval or
registration was required.
The Court notes that the refusal of registration as a
“religious organisation” had the effect of denying legal
personality to the Church of Scientology of Surgut, of which the
first applicant was the president, and the Church of Scientology of
Nizhnekamsk, which had been co-founded by the second applicant and
which is also an applicant in the present case. It has been the
Court's settled case-law that the ability to establish a legal entity
in order to act collectively in a field of mutual interest is one of
the most important aspects of freedom of association, without which
that right would be deprived of any meaning. A refusal by the
domestic authorities to grant legal-entity status to an association,
religious or otherwise, of individuals amounts to an interference
with the exercise of the right to freedom of association (see
Gorzelik and Others v. Poland [GC], no. 44158/98, §
52 et passim, ECHR 2004-I, and Sidiropoulos and Others,
cited above, § 31 et passim). The Court has previously
accepted that the authorities' refusal to register a group directly
affects both the group itself and also its presidents, founders or
individual members (see The United Macedonian Organisation Ilinden
and Others v. Bulgaria, no. 59491/00, § 53, 19 January
2006; Partidul Comunistilor (Nepeceristi) and Ungureanu
v. Romania, no. 46626/99, § 27, 3 February 2005;
APEH Üldözötteinek Szövetsége and
Others v. Hungary (dec.), no. 32367/96, 31 August
1999). Where the organisation of a religious community was at issue,
a refusal to recognise it as a legal entity has also been found to
constitute interference with the right to freedom of religion under
Article 9 of the Convention, as exercised by both the community
itself and its individual members (see Religionsgemeinschaft der
Zeugen Jehovas and Others, §§ 79-80, and Metropolitan
Church of Bessarabia and Others, § 105, both cited
above).
Secondly,
as regards the Government's claim that the status of a “religious
group” was an acceptable substitute for legal recognition, the
Court observes that a religious group without legal personality
cannot possess or exercise the rights associated with legal-entity
status, such as the rights to own or rent property, to maintain bank
accounts, to hire employees, and to ensure judicial protection of the
community, its members and its assets (see paragraph 54 above). The
Court, however, has consistently maintained the view that these
rights are essential for exercising the right to manifest one's
religion (see Religionsgemeinschaft der Zeugen Jehovas and Others,
§ 66 in fine, and Metropolitan Church of
Bessarabia and Others, § 118, both cited above, and
also Koretskyy and Others v. Ukraine, no. 40269/02, §
40, 3 April 2008; and Canea Catholic Church v. Greece,
16 December 1997, §§ 30 and 40-41, Reports
1997 VIII).
Moreover,
in addition to the above-mentioned rights normally associated with
legal-entity status, the Religions Act reserved a panoply of rights
to registered “religious organisations” and explicitly
excluded the possibility of such rights being exercised by either
religious groups or non-religious legal entities (see paragraphs 54
and 55 above). The exclusive rights of religious organisations
included, in particular, such fundamental aspects of religious
functions as the right to establish places of worship, the right to
hold religious services in places accessible to the public, the right
to produce, obtain and distribute religious literature, the right to
create educational institutions, and the right to maintain contacts
for international exchanges and conferences. As noted above,
religious groups or non-religious legal entities may not exercise any
of these rights. In these circumstances, the Court considers that the
declared rights of religious groups to perform services of worship,
to teach religion and to guide their followers (see paragraph 52
above) are merely nominal, for their exercise in practice would be
severely curtailed or even made impossible without the specific
rights which the Religions Act reserved to registered religious
organisations. Indeed, it is hardly conceivable that a religious
group would be able to teach religion and guide its followers if the
law denied it the possibility to acquire or distribute religious
literature. Likewise, the right to perform services of worship would
be devoid of substance so long as a non-registered religious group
could not establish or maintain places of worship. Accordingly, the
Court finds that the restricted status afforded to “religious
groups” under the Religions Act did not allow members of such a
group to enjoy effectively their right to freedom of religion,
rendering such a right illusory and theoretical rather than practical
and effective, as required by the Convention (see Hasan and
Chaush, cited above, § 62, and Artico v. Italy,
13 May 1980, § 33, Series A no. 37).
The
view that the restricted status of religious groups under the
Religions Act does not confer on these groups a set of rights of
sufficient scope for carrying out important religious functions has
been also expressed by the Parliamentary Assembly of the Council of
Europe, the OSCE's Office for Democratic Institutions and Human
Rights and the Russian Ombudsman (see, in particular, the documents
cited in paragraphs 63, 67 and 68 above). Furthermore, in domestic
litigation, where a decision refusing legal-entity status to a
religious community was contested, the Russian courts have also
accepted that without legal personality, a religious group cannot
enjoy the “collective rights that citizens exercise in
community with others” (see the judgment of the Chelyabinsk
Regional Court cited in paragraph 62 above).
The
Court has thus established that the applicants were unable to obtain
recognition and effective enjoyment of their rights to freedom of
religion and association in any organisational form. The first
applicant could not obtain registration of the Scientology group as a
non-religious legal entity because it was considered to be a
religious community by the Russian authorities. The applications for
registration as a religious organisation submitted by the first and
second applicants as founders of their respective groups and also on
behalf of the third applicant were denied by reference to the
insufficient period of the groups' existence. Finally, the restricted
status of a religious group for which they qualified and in which the
third applicant existed conveyed no practical or effective benefits
to them as such a group was deprived of legal personality, property
rights and the legal capacity to protect the interests of its members
and was also severely hampered in the fundamental aspects of its
religious functions.
Accordingly,
the Court finds that there has been an interference with the
applicants' rights under Article 9 interpreted in the light of
Article 11.
C. Justification for the interference
1. Submissions by the parties
(a) The applicants
The
applicants pointed out that numerous reports of the Monitoring
Committee and Resolutions of the Parliamentary Assembly of the
Council of Europe and also statements by the Russian Ombudsman
indicated that the “fifteen-year rule” was incompatible
with the Convention. The denial of legal-entity status to their
communities had not pursued any “legitimate aim” under
Article 9 § 2 or any of the aims listed in paragraph 4 of the
Constitutional Court's decision of 23 November 1999. The impugned
restriction was disproportionate and unnecessary in Russia or any
other “democratic society” because the Religions Act
already conferred extensive powers on Russia's justice departments,
allowing them to monitor religious organisations suspected of illegal
activities (section 25), refuse their registration (section 12 §
1) or apply to a court seeking their dissolution and/or a ban on
their activities (section 14 §§ 1 and 3), without recourse
to the “fifteen-year rule”. This principle should have
been a fortiori applicable to the applicants' communities,
which had not been suspected of harbouring any illegal aims.
(b) The Government
The
Government claimed that the “fifteen-year rule”
incorporated in the Religions Act complied with “universally
accepted principles and rules of international law, provisions of the
Russian Constitution and contemporary legal practice in democratic
States”. They maintained that the grounds for refusing State
registration had been “purely legal” and prescribed by
the Religions Act, that the decision had not been motivated by
religious considerations and that there had been no causal link
between the decision and the enjoyment of the right of citizens to
freedom of religion and association. There had been no evidence of
arbitrariness or discrimination on the ground of religion. The
Government relied in that connection on the Court's finding that
“States have a right to satisfy themselves that an
association's aim and activities are in conformity with the rules
laid down in legislation” (here they referred to Sidiropoulos
and Others, cited above, § 40).
2. The Court's assessment
In
order to determine whether the interference complained of entailed a
breach of the Convention, the Court must decide whether it satisfied
the requirements of the second paragraphs of Articles 9 and 11, that
is, whether it was “prescribed by law”, pursued a
legitimate aim for the purposes of those provisions and was
“necessary in a democratic society”.
(a) Whether the interference was
prescribed by law
It
follows from the judgments of the domestic courts that the
applicants' communities were refused registration as religious
organisations by reference to section 9 § 1 of the Religions Act
(see paragraph 56 above) on account of the failure to produce
confirmation from a local authority of the groups' existence in a
given territory for at least fifteen years.
The
parties did not dispute that this provision, as interpreted by the
courts in the instant case, was sufficiently accessible and
foreseeable as to its effects.
Accordingly,
the Court is prepared to accept that the interference in question was
“prescribed by law”.
(b) Whether the interference pursued a
legitimate aim
The
Government omitted to indicate any legitimate aim which the
interference may have pursued. However, when examining the remit of
the “fifteen-year-rule”, the Russian Constitutional Court
opined that a refusal of legal-entity status to religious
associations may, in certain circumstances, be necessary for
preventing violations of human rights or commission of illegal acts
(see paragraph 59 above).
Having
regard to the position of the Constitutional Court and to its own
case-law in similar cases (see Religionsgemeinschaft der Zeugen
Jehovas and Others, § 75, and Metropolitan Church of
Bessarabia and Others, § 113, both cited above), the
Court is prepared to assume that the interference complained of
pursued a legitimate aim, namely that of the protection of public
order.
(c) Whether the interference was necessary
in a democratic society
The
Court observes that the groups founded by the first and second
applicants and the third applicant were denied registration as
religious organisations not because of any alleged shortcoming on
their part or any specific feature of their religious creed but
rather as a result of the automatic operation of the legal provision
which prevented all religious groups that had not existed in a given
territory for at least fifteen years from obtaining legal-entity
status. It notes that, according to the report on freedom of religion
prepared by the OSCE, such a provision was peculiar to the Russian
Religions Act and there were no other OSCE participating States that
required the lengthy existence of a religious organisation before
registration was permitted (see paragraph 68 above). The Government,
for their part, did not corroborate their claim that the imposition
of similar waiting requirements was “a contemporary legal
practice in democratic States” by reference to any comparable
legal provisions in any of the member States of the Council of
Europe.
The
Court has recently examined a case in which a religious community of
Jehovah's Witnesses was made to wait – for a variety of reasons
– for more than twenty years until it could obtain recognition
as a legal entity. The Court found that such a prolonged period
raised concerns under Article 9 and considered that, given the
importance of the right to freedom of religion, there was an
obligation on the State authorities to keep the time during which an
applicant waited for conferment of legal personality reasonably
short. Since the respondent Government had not relied on any
“relevant” and “sufficient” reasons
justifying the failure to grant legal personality in a prompt
fashion, the Court found a violation of Article 9 (see
Religionsgemeinschaft der Zeugen Jehovas and Others, cited
above, §§ 78-80).
In
the instant case the Russian Government did not identify any
“pressing social need” which the impugned restriction
served or any “relevant” and “sufficient”
reasons which could justify the lengthy waiting period that a
religious organisation had to endure prior to obtaining legal
personality. In so far as the Government referred to the Sidiropoulos
and Others case (cited above), the Court reiterates that in that
case it found a violation of Article 11 of the Convention even though
the applicant association had been suspected of harbouring unlawful
aims and had been denied registration as a preventive measure. The
Court pointed out that “having never existed, the association
did not have time to take any action” and that, in any event,
the authorities would not have been powerless since a “court
could order that the association be dissolved if ... its functioning
proved to be contrary to law, morality or public order” (see
Sidiropoulos and Others, cited above, § 46).
By
contrast, at no point in the proceedings in the present case has it
been alleged that the applicants – either as individuals or as
the religious group – engaged or intended to engage in any
unlawful activities or pursued any aims other than worship, teaching,
practice and observance of their beliefs. The ground for refusing
registration was purely formal and unconnected with their actual
functioning. The only “offence” which the applicants have
been found guilty of was the intention to seek registration of an
association that was “religious in nature” and had not
been in existence in the region for at least fifteen years. The Court
also observes in this connection that the contested provision of the
Religions Act only targeted base-level religious communities that
could not show either their presence in a given Russian region or
their affiliation with a centralised religious organisation. It
appears therefore that only those newly emerging religious groups
that did not form part of a strictly hierarchical church structure
were affected by the “fifteen-year rule”. The Government
did not offer any justification for such differential treatment.
In the light of the foregoing considerations, the Court finds that
the interference with the applicants' rights to freedom of religion
and association cannot be said to have been “necessary in a
democratic society”. There has therefore been a violation of
Article 9 of the Convention, interpreted in the light of Article 11.
D. Other alleged violations of the Convention
The
applicants also complained that the refusal of registration violated
Article 10 of the Convention and that the “fifteen-year rule”
operated in such a way as to discriminate against their communities
on account of their religious nature, in breach of Article 14 of the
Convention.
In
the circumstances of the present case the Court considers that the
complaint under Article 10 and the complaint about the inequality of
treatment of which the applicants claimed to be victims have been
sufficiently taken into account in the above assessment that led to
the finding of a violation of substantive Convention provisions. It
follows that there is no cause for a separate examination of the same
facts from the standpoint of either Article 10 or Article 14 of the
Convention (compare Metropolitan Church of Bessarabia and Others,
§ 134, and Sidiropoulos and Others, § 52,
both cited above).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicants claimed 15,000 euros (EUR) for each applicant in respect
of compensation for non-pecuniary damage, representing the
considerable anxiety and inconvenience they had suffered over the
course of the years when they had been prevented from fully
exercising religious rights and forced to divert effort and energy to
litigation. They also requested the Court to hold that the respondent
State was to secure the registration of the communities as religious
organisations within the meaning of section 11 of the Religions Act.
The
Government submitted that the finding of a violation would constitute
sufficient just satisfaction. They also stressed that the applicants
were complaining about the domestic decisions refusing registration
of the churches rather than about the registration procedure as such.
Requiring that the State should register the churches would
discriminate against other groups which would still have to follow
the ordinary registration procedure.
The
Court notes that the violation it has found must have caused the
first and second applicants non-pecuniary damage, for which it
awards, on an equitable basis, EUR 5,000 to each of the first and
second applicants, plus any tax that may be chargeable. As to the
third applicant, the Court considers that the finding of a violation
provides sufficient just satisfaction for any non-pecuniary damage it
may have suffered. It dismisses the remainder of the applicants'
claim for non-pecuniary damage.
As
regards the applicants' request for injunctive relief in the form of
registration of the religious communities concerned, the Court is not
empowered under the Convention to grant exemptions or to issue orders
of the kind sought by the applicants, for its judgments are
essentially declaratory in nature (see Church of Scientology
Moscow, cited above, § 106). In general, it is
primarily for the State concerned to choose the means to be used in
its domestic legal order to discharge its legal obligation under
Article 46 of the Convention. By finding a violation of Article
9 read in the light of Article 11 in the present case, the Court has
established that the State is under an obligation to take appropriate
measures to remedy the applicants' particular situation. Whether such
measures would involve granting registration to the communities
concerned, removing the reference to the “fifteen-year rule”
from the Religions Act, reopening of the domestic proceedings or a
combination of these and other measures is a decision that falls to
the respondent State. The Court, however, emphasises that any
measures adopted must be compatible with the conclusions set out in
its judgment (see Assanidze v. Georgia [GC], no.
71503/01, § 202, ECHR 2004-II, with further references).
B. Costs and expenses
The
applicants jointly claimed the following documented 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.
The
Government pointed out that the applicants had produced no documents
substantiating their claim for the outstanding legal fees. As regards
the other expenses, phone bills, power supplies and bus and metro
tickets might have been irrelevant to the proceedings at issue. They
considered that EUR 3,000 would represent reasonable compensation.
The Court accepts that the applicants incurred costs and expenses in
connection with their repeated attempts to secure registration and in
the domestic and Strasbourg proceedings. The applicants' expenses are
supported by relevant materials. It considers, however, that the
amount claimed in respect of outstanding legal fees is excessive and
a certain reduction must be applied. Having regard to the elements in
its possession, the Court awards the applicants jointly EUR 10,000 in
respect of costs and expenses, plus any tax that may be chargeable to
them on that amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
9 of the Convention read in the light of Article 11;
Holds that no separate examination of the
complaints under Articles 10 and 14 of the Convention is required;
Holds
(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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
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
