AS TO THE ADMISSIBILITY OF
by Tamara SKUGAR and Others
The European Court of Human Rights (First Section), sitting on 3 December 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Mr Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 1 September 2004,
Having deliberated, decides as follows:
The applicants, Mrs Tamara Sergeyevna Skugar, Mrs Lidiya Sergeyevna Dzyuba and Mrs Aleksandra Ivanovna Gavrutenko, are Russian nationals who were born in 1936, 1939 and 1944, respectively, and live in the town of Tarko-Sale in the Yamalo-Nenetskiy Region of the Russian Federation.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 10 March 1999 the Government adopted regulations on the Unified State Register of Taxpayers (the “Register”). Information on taxpayers was to be entered in the Register on the basis of taxpayer’s individual identification numbers (индивидуальный номер налогоплательщика (ИНН), the “taxpayer’s number”). The taxpayer’s number was a twelve-digit sequence which included two digits for the regional tax inspectorate, the taxpayer’s sequential number, and the check value.
On an unspecified date the applicants submitted applications to district tax inspectorate no. 4 of the Yamalo-Nenetskiy Region to have their taxpayers’ numbers cancelled on the ground that the numbers “had been assigned to them through ignorance... because that number is a forerunner of the mark of the Antichrist as it is said in the Apocalypse, Revelation, 13:15-13:16”. They claimed that they did not refuse to pay taxes but merely sought an opportunity “to exercise freely the rights of a Russian citizen without the taxpayer’s identification number”.
On 28 January 2002, 7 October 2003 and other dates the tax inspectorate responded to their applications in the following terms:
“An individual interacting with the tax authority is not assigned a number, he is merely issued with a certificate showing his status as a taxpayer and the taxpayer’s number. And there is an important distinction; the number does not replace the person’s Christian name and it does not contain information on the person’s family status or relationships with parents, friends or other persons... In any event, the taxpayer’s number is, in essence, nothing more than the number of his personal account at the tax authority. Similar numbers were introduced for accounting of payers by the Pension Fund and the Medical and Social Security Fund...
In the final document of the 7th Plenary Session of the Synodal Theological Commission of the Russian Orthodox Church held in Moscow on 19-20 February 2001 the following conclusion, in particular, was made: acceptance or non-acceptance of individual numbers is not, by any means, a religious question or a sinful deed. This is a matter of personal choice that has no religious significance...”
The tax inspectorate informed the applicant that the Tax Ministry had prepared for Orthodox believers a special questionnaire approved by the Orthodox Highest Clergy Council (Архиерейский Собор) on 13-16 August 2000, and invited them to their offices for a discussion. It is unclear whether the applicants attended the discussion and what its outcome was.
In April 2004 the applicants complained to a court, claiming that the taxpayer’s number had been “imposed on them contrary to their religious convictions”. They submitted that the interference with their right to freedom of religion was not absolutely necessary, because their demands did not violate other citizens’ rights and because before 1994 the tax system had operated without any personal numbers.
On 19 April 2004 the Purovskiy District Court of the Yamalo-Nenetskiy Region gave a judgment on their complaint. Referring to the Constitutional Court’s decision of 10 July 2003 (see below), the District Court found that the tax inspectorate had lawfully acted within its competence and that the allocation of the taxpayer’s number did not interfere with the claimants’ private life or their right to act in accordance with their religious beliefs.
The applicants lodged a statement of appeal. They claimed that the State had violated their right to follow their beliefs by imposing on them a “mark of sin” in the form of the taxpayer’s number.
On 17 June 2004 the Yamalo-Nenetskiy Regional Court upheld the judgment on appeal. It emphasised that:
“...the identification number does not replace the person’s name and may be used, alongside with other tax accounting data, solely for the purposes of taxation; it does not encroach on the citizen’s person or rights.”
B. Relevant domestic law and practice
On 10 July 2003 the Constitutional Court declared inadmissible a complaint by a group of individuals who claimed that attribution of a taxpayer’s number without the taxpayer’s consent violated their constitutional rights to respect for their private life and to freedom of religion and belief. It found, in particular, as follows:
“The taxpayer’s number is a numerical code consisting of twelve sequential digits... Thus, any appearance in the taxpayer’s number of a certain number that might hurt the taxpayer’s religious feelings is fortuitous; the taxpayer’s number does not replace the person’s name and shall be used, alongside with other tax data, solely for the purposes of tax accounting. Accordingly, there is no reason to assert that [Article 84 of the Tax Code] violates the right to freedom of religion or the prohibition on collecting, storing, using and disseminating information about an individual without his or her consent. Besides, the Tax Code does not prevent the taxpayer’s number from being changed in cases where the taxpayer’s religious convictions so require...
Since [Article 84 of the Tax Code] does not encroach, as such, on the claimants’ constitutional rights and freedoms, the present complaint is inadmissible...”
Article 84 § 8 of the Tax Code (Federal Law no. 46-FZ of 31 July 1998) provides:
“Every taxpayer... shall be assigned a unique identification taxpayer’s number.
The tax authorities shall mention the taxpayer’s number in all documents sent to the taxpayer.
Every taxpayer shall mention his taxpayer’s number in all declarations, reports, statements and other documents submitted to the tax authorities...”
By Federal Law no. 137-FZ of 27 July 2006, the following paragraph was added to Article 84 § 8 of the Tax Code:
“Individuals who are not registered as self-employed entrepreneurs shall have the right not to mention their taxpayer’s numbers in the submitted documents on the condition that they have listed their personal data enumerated in paragraph 1 of Article 84 [name, date and place of birth, address, passport and citizenship].”
C. Position of the Russian Orthodox Church
On 7 March 2000 the Holy Synod of the Russian Orthodox Church adopted an appeal to believers concerning taxpayer’s identification numbers. It held, in particular, as follows:
“We want to state clearly: fear not the external symbols and signs, for no delusion created by the enemy to human souls may prevail the God’s grace that abounds in the Holy Church...
To those who attempt to link the identification numbers with the ‘antichrist’s mark’ we remind that the tradition of the holy fathers understood the marks as a sign certifying deliberate repudiation of Christ... In spite of that tradition it is occasionally claimed that a technological act allegedly may, by itself, create turmoil in the innermost depths of the human soul leading to Christ’s oblivion. Such a superstition is at variance with the Orthodox interpretation of the Revelation of St John the Divine, according to which the ‘mark of the Beast’ will be received by those who deliberately put faith in him ‘solely for the sake of his false miracles’ (St John Chrysostom). No external mark may harm the spiritual health of the person unless it is a consequence of deliberate treason of Christ and profanation of faith...”
D. Similar cases from other jurisdictions
In 1986, the United States Supreme Court issued a judgment in the case of Bowen v. Roy, 476 U.S. 693 (1986), in which the parents of a two-year-old child contended that using a social security number to identify their daughter would “steal her soul” and violate their native American religious beliefs. By a majority, the Supreme Court found against the parents, holding as follows:
“Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern... Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.
As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures...
The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms, and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously, or any covert suppression of particular religious beliefs...
We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons... In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude... Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden [of proof] when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest...”
A subsequent case before the United States Supreme Court, Employment Div. v. Smith, 494 U.S. 872 (1990), concerned two individuals who were fired from their job for ingesting peyote for sacramental purposes at a ceremony of their Native American Church. The Supreme Court affirmed its approach, finding as follows:
“Although a State would be ‘prohibiting the free exercise [of religion]’ in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons...
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’... To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’... – contradicts both constitutional tradition and common sense.”
The applicants complained that the actions of the State authorities had impaired their rights under Article 9 of the Convention.
The applicants complained that the taxpayer’s numbers had been assigned to them against their will, despite the fact that accepting such a number was incompatible with their religious beliefs protected under Article 9 of the Convention, which reads as follows:
“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.”
The applicants sought to have the taxpayers’ numbers cancelled on the ground that their attribution, unbeknownst to them, was tantamount to marking them with the “mark of the Beast” and thereby alienating them from the Orthodox Church.
The Court reiterates its constant approach that Article 9 protects the sphere of personal beliefs and religious creeds, that is the area which is sometimes called the forum internum. It also protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form. However, in protecting this personal sphere, Article 9 does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief. The term “practice” in Article 9 does not cover any act which is motivated or influenced by a religion or belief. When the actions of individuals do not actually express the belief concerned, they cannot be considered to be as such protected by Article 9 § 1, even when they are motivated or influenced by it (see, as a classic authority, Arrowsmith v. the United Kingdom, Commission’s report of 12 October 1978, Decisions and Reports 19, p. 5, and also see Porter v. the United Kingdom (dec.), no. 15814/02, 8 April 2003, and Zaoui v. Switzerland (dec.), no. 41615/98, 18 January 2001, with further references).
Accordingly, in determining the applicability of Article 9 of the Convention, the Court is called upon to decide, firstly, whether the applicants entertained beliefs that may genuinely claim protection as a religious creed or matter of conscience and, secondly, whether the applicants’ actual conduct may be considered a direct expression of those beliefs which requires protection.
On the first question, the Court notes that it is not its province to evaluate the legitimacy of religious claims or to question the validity or relative merits of interpretation of particular aspects of beliefs or practices. It is ill-conceived to delve into discussion about the nature and importance of individual beliefs, for what one person holds as sacred may be absurd or anathema to another and no legal or logical argument can be invoked to challenge a believer’s assertion that a particular belief or practice is an important element of his religious duty. This does not, nevertheless, prevent the Court from making factual findings as to whether an applicant’s religious claims are genuine and sincerely held (see X. v. the United Kingdom, no. 7291/75, Commission decision of 4 October 1977).
In the instant case the interpretation of the Bible to which the applicants adhere appears to be at variance with the position expressed by the Holy Synod of the Russian Orthodox Church in its statement of 7 March 2000. However, in the absence of any indication of insincerity on the part of the applicants, the Court accepts that their rejection of technologically-derived markers for religious reasons may, in principle, qualify for protection under Article 9 of the Convention.
Turning to the second point of the inquiry, the Court has to determine whether or not in the present case the applicants’ wishes can be considered a direct expression of their beliefs in practice in the sense of Article 9. It reiterates that Article 9 protects acts of worship and devotion which are “aspects of the practice of a religion or belief in a generally recognised form” (see Kuznetsov and Others v. Russia, no. 184/02, § 57, 11 January 2007, and Kalaç v. Turkey, 1 July 1997, § 27, Reports 1997 IV). Such acts have been previously held to include, in particular, the reading of sacred texts (see Kuznetsov and Others, cited above), assembling with others for a service of worship (see Barankevich v. Russia, no. 10519/03, § 20, 26 July 2007), participation in the life of the community (see Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, § 73, 16 December 2004), proselytising (see Kokkinakis v. Greece, 25 May 1993, § 36, Series A no. 260 A), wearing specific clothes (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 78, ECHR 2005 XI, and Phull v. France (dec.), no. 35753/03, 11 January 2005), and respecting dietary restrictions (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000 VII). On the other hand, the wish to have one’s ashes scattered on one’s own land (see X. v. Germany, no. 8741/79, Commission decision of 10 March 1981, D.R. 24, p. 137), to put a photograph on a graveyard memorial (see Jones v. the United Kingdom (dec.), no. 42639/04, 13 September 2005) or to give a specific name to a child (see Salonen v. Finland, no. 27868/95, Commission decision of 2 July 1997), the request for an exemption from the general prohibition on divorce (see Johnston and Others v. Ireland, 18 December 1986, § 63, Series A no. 112) or on assisted suicide (see Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002 III), mandatory participation in a school parade (see Valsamis v. Greece and Efstratiou v. Greece, 18 December 1996, § 37, Reports 1996 VI), or the refusal of pharmacists to sell contraceptive pills (see Pichon and Sajous v. France (dec.), no. 49853/99, 2 October 2001), were not recognised as a direct expression of the applicants’ beliefs protected under Article 9 of the Convention.
In the instant case the Court does not need to decide whether the applicants’ wish to have their identification numbers cancelled falls into the former or the latter category, because the application is in any event inadmissible for the following reasons.
The Convention organs have consistently held that general legislation which applies on a neutral basis without any link whatsoever with an applicant’s personal beliefs cannot in principle be regarded as an interference with his or her rights under Article 9 of the Convention. Ruling on the application of a Quaker who refused to pay the portion of taxes which was destined for military expenditure, the Commission held that “the obligation to pay taxes is a general one which has no specific conscientious implications in itself” and that “Article 9 does not confer on the applicant the right to refuse to abide by legislation... which applies neutrally and generally in the public sphere, without impinging on the freedoms guaranteed by Article 9” (see C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, D.R. 37, p. 142). In the same way it was argued that the duty to participate in a pension scheme did not interfere with the applicant’s anthroposophic beliefs: “the obligation to participate in a pension fund applies to all general practitioners on a purely neutral basis, and cannot be said to have any link with their religion or beliefs” (see V. v. the Netherlands, no. 10678/83, Commission decision of 5 July 1984, D.R. 34, p. 267). The same conclusion was reached with regard to the obligation to join a professional association which applied to every member of the profession “on a neutral basis, having no link whatsoever with his personal beliefs” (see Revert and Legallais v. France, nos. 14331/88 and 14332/88, Commission decision of 8 September 1989, D.R. 62, p. 314). The Court notes that a similar position was adopted by the United States Supreme Court, which held that “in the enforcement of a facially neutral and uniformly applicable requirement ... the Government is entitled to wide latitude” (see Bowen v. Roy, cited above).
The situation in the instant case is similar to that in the above-mentioned cases. The Russian Tax Code provides that the tax authorities assign an individual taxpayer’s number to each taxpayer and use that number to identify him or her and to process their tax documents. The numbers are formed according to the same pattern and the procedure is neutral and uniform in its application with regard to every taxpayer under Russian jurisdiction, irrespective of his or her nationality, language, religious views or other similar factors. There is no obligation on taxpayers to take any action to obtain the number, since it is automatically created on first contact with the tax authorities.
The current version of the Tax Code accommodates the wishes of those who, for religious reasons or otherwise, are loath to mention their taxpayers’ numbers in the documents. It is now sufficient for those individuals to indicate their personal data, such as name, date of birth, address, and so on. However, this amendment to the Tax Code does not render the present case moot, since it was born out of the applicants’ objection to the very fact that the numbers had been assigned to designate their entries into the State taxation database without their prior consent.
The Court emphasises that the applicants have never been required to apply for, or to make use of, the taxpayers’ numbers. It follows that the applicants objected to the use of taxpayers’ identification numbers not because the numbers placed any restriction on the way they acted or wished to act but solely because they believed that the mere existence of the numbers harmed their spiritual well-being. However, the Court considers that the State, in designing and implementing its internal procedures, cannot be required to take into account the way in which individual citizens could interpret them on the basis of their religious beliefs. The objection to the use of numbers in a tax database is in that sense no different, to borrow the apt comparison of the United States’ Supreme Court, to the “objection to the size or color of the Government’s filing cabinets” (see the Bowen v. Roy judgment, cited above). In both instances, the alleged incompatibility of the authorities’ internal arrangements with the applicants’ beliefs is merely an incidental effect of generally applicable and neutral legal provisions. Thus, the contents of official documents or databases cannot be determined by the wishes of the individuals listed therein. It is obvious that the entries in a database must be established on the same model, both for technical reasons and on account of legal considerations. If every individual could remove or add at his whim the information he or she considered desirable or inappropriate, the uniformity required in administrative matters and its underlying philosophy would be impaired (compare, on the use of identity cards, Sofianopoulos and Others v. Greece (dec.), nos. 1988/02, 1997/02, 1977/02, 12 December 2002).
It follows that the method of organisation of the State taxation database involving the use of individual taxpayers’ numbers did not amount to an interference with the applicants’ right to freedom of religion under Article 9 of the Convention. Accordingly, this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina