FIRST
SECTION
CASE OF JEHOVAH'S
WITNESSES OF MOSCOW v. RUSSIA
(Application no.
302/02)
JUDGMENT
This
version was rectified on 18 August 2010
under Rule 81 of the Rules of Court
STRASBOURG
10 June 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 Jehovah's
Witnesses of Moscow v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having
deliberated in private on 20 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 302/02) 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 the
religious community of Jehovah's Witnesses of Moscow and four Russian
nationals listed below (“the applicants”) on 26 October 2001.
2. The
applicants were represented by Mr R. Daniel, barrister of the Bar of
England and Wales, Ms G. Krylova and Mr A. Leontyev, Russian lawyers
practising in Moscow and St Petersburg respectively, and Mr J. Burns,
a member of the Canadian Bar. The Russian Government (“the Government”)
were represented by Mr P. Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
3. The
applicants alleged, in particular, a violation of their rights to freedom
of religion and association, the right to a hearing within a reasonable
time and a breach of the prohibition on discrimination.
4. On
5 June 2003 the Court decided to give notice of the application to the
Government. The parties submitted their observations.
5. On
6 January 2005 the Court put additional questions to the parties. It
also decided to examine the merits of the application at the same time
as its admissibility (Article 29 § 3).
6. The
Court decided, after consulting the parties, that no hearing in the
case was required.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicants
7. The
first applicant is the religious community of Jehovah's Witnesses of
Moscow (“the applicant community”) established in 1992. The other
applicants are members of that community. All of them live in Moscow.
8. The
second applicant, Mr Ivan Stepanovich Chaykovskiy, was born in 1955.
He has been with the Jehovah's Witnesses since 1977 and is a community
elder.
9. The
third applicant, Mr Igor Vasilievich Denisov, was born in 1961. He has
been a member of the applicant community since 1993.
10. The
fourth applicant, Mr Stepan Vasilievich Levitskiy, was born in 1925.
He was twice convicted in Soviet times – in 1957 and 1980 – for
disseminating Jehovah's Witnesses' religious literature and officially
rehabilitated in 1992 as a victim of religious persecution.
11. The
fifth applicant, Mr Oleg Nikolaevich Marchenko, was born in 1965. He
is a third-generation Jehovah's Witness whose grandparents were exiled
to Siberia in 1951 under an order deporting Jehovah's Witnesses.
B. Jehovah's Witnesses in Russia
12. Jehovah's
Witnesses have been present in Russia since 1891. They were banned soon
after the Russian Revolution in 1917 and persecuted in the Soviet Union.
13. After
the USSR Law on Freedom of Conscience and Religious Organisations was
enacted in 1990, on 27 March 1991 the RSFSR Ministry of Justice registered
the charter of the Administrative Centre of The Religious Organisation
of Jehovah's Witnesses in the USSR.
14. On
11 December 1992 the Ministry of Justice of the Russian Federation registered
the charter of the Administrative Centre of the Regional Religious Organisation
of Jehovah's Witnesses.
15. The
applicant community, which is the Moscow branch of the Jehovah's Witnesses,
obtained legal-entity status on 30 December 1993 from the Moscow City
Justice Department. According to its charter, the purpose of the applicant
community was “joint profession and dissemination of [their] faith
and carrying on religious activity to proclaim the name of God the Jehovah”.
C. Criminal investigations into the Jehovah's
Witnesses' activity
16. In
1995 the Committee for the Salvation of Youth from Totalitarian Cults
(“the Salvation Committee”), a non-governmental organisation aligned
with the Russian Orthodox Church, filed a complaint against the members
of the applicant community's management with the Savyolovskiy district
prosecutor's office in Moscow. It alleged in particular that Jehovah's
Witnesses burdened their followers with exorbitant membership dues that
put their families in a financially precarious situation and that they
incited hatred toward “traditional” religions.
17. On
11 August 1995 the prosecutor's office refused to institute a criminal
investigation, finding no breaches of the community's registered charter,
the Constitution or other laws. It was also noted that no complaints
from private persons or legal entities concerning the activity of the
applicant community had been filed.
18. In
1996 the Salvation Committee complained again and the inquiry into the
same allegations was reopened. On 21 April 1997 the prosecutor of the
Northern District of Moscow discontinued the investigation. Having heard
several Jehovah's Witnesses and completed a study of their literature,
the prosecutor found that the applicant community did not cause any
harm to the health of citizens or their rights and did not incite citizens
to refuse to fulfil their civil duties or commit disorderly acts.
19. Following
a third complaint by the Salvation Committee, the prosecutor in charge
of supervising compliance with laws on inter-ethnic relations in the
General Prosecutor's Office ordered the case to be reopened. On 15 September
1997 an investigator with the prosecutor's office of the Northern District
of Moscow again discontinued the investigation. She scrutinised in detail
the Salvation Committee's allegations concerning the death of a Jehovah's
Witness who had refused a blood transfusion and accusations about alienation
of family members resulting from their involvement in the religious
activity of the applicant community. The investigator established that
no harm allegedly caused by the management of the applicant community
to other persons could be proven.
20. Following
a fourth complaint lodged by the Salvation Committee, the investigation
was reopened on 28 November 1997. The complaint was based on the same
allegations as the previous ones. On 28 December 1997 the same investigator
discontinued the proceedings for the same reasons as those set out in
her earlier decision. In particular, she pointed out that “the Committee
for the Salvation of Youth's statements are based upon their active
hostility towards this particular religious organisation, whose members
they [the Committee] deny the mere possibility of exercising their constitutional
rights because of their religious beliefs”.
21. The
Salvation Committee requested a new investigation for the fifth time.
The Moscow City prosecutor's office reopened the case and assigned it
to another investigator on 20 March 1998.
22. On
13 April 1998 the new investigator, in charge of particularly important
cases in the Northern District of Moscow, terminated the criminal proceedings.
Her findings in respect of substantially the same allegations were different,
however. She found that Jehovah's Witnesses alienated their followers
from their families, intimidated believers and controlled their mind,
as well as inciting them to civil disobedience and religious discord.
The investigator pointed out that the community acted in breach of Russian
and international laws, but that no criminal offence could be established.
Accordingly, she discontinued the criminal case but recommended that
the prosecutor of the Northern District of Moscow lodge a civil action
for the applicant community to be dissolved and its activity banned.
D. First set of civil dissolution proceedings
against the applicant community
23. On
20 April 1998
the prosecutor of the Northern Administrative District of Moscow filed
a civil action for the applicant community to be dissolved and its activity
banned. The prosecutor's charges against the applicant community were:
(i) incitement to religious discord; (ii) coercion into destroying the
family; (iii) encouragement of suicide or refusal on religious grounds
of medical assistance to persons in life- or health-threatening conditions;
(iv) infringement of rights and freedoms of citizens; and (v) luring
teenagers and minors into the religious organisation.
24. On
29 September 1998 hearings before the Golovinskiy District Court of
Moscow began. The presiding judge admitted several new witnesses for
the prosecution and allowed the Salvation Committee to take part in
the proceedings as a third party on the ground that it “defends the
rights of citizens”, overruling an objection by the defence.
25. On
18 November 1998 the hearing was adjourned to February 1999 because
the prosecutor was not ready.
26. On
15 January 1999 the prosecutor filed a supplementary action based on
the same allegations and corroborated by references to quotations from
the religious literature of Jehovah's Witnesses.
27. On
9 February 1999 the proceedings resumed. The judge reversed her previous
decision and, on a request by the defence, removed the Salvation Committee
as third party in the case. The court proceeded to hear witnesses and
experts.
28. On
12 March 1999 the court stayed the proceedings. The judge found that
contradictions between the expert opinions submitted by the parties
could not be resolved and ordered a new expert study of the applicant
community's religious beliefs. The court appointed five experts –
two in religious studies, two in linguistics and one in psychology –
and asked them whether the literature or materials of Jehovah's Witnesses
contained indications of incitement to religious discord, coercion into
destroying the family or infringements of the rights and freedoms of
others. The source material for the study included two volumes of evidence
in the civil case, literature and documents of Jehovah's Witnesses,
and the Synodal translation of the Bible.
29. On
4 October 2000 the five-expert composite study was completed. On 9 February
2001 the proceedings resumed and on 23 February 2001
the District Court gave judgment.
30. The
Golovinskiy District Court heard over forty witnesses and experts and
examined religious literature and documents. It scrutinised the experts'
report and took their oral testimony. A fifteen-page report by four
experts endorsed the prosecutor's allegations, while the fifth expert
dissented in a refutation of 139 pages. The court noted that he was
the only expert who had ever observed “how Jehovah's Witnesses carry
out their preaching work in different countries”, while the four other
experts “confirmed that they did not examine anyone belonging to the
indicated group [Jehovah's Witnesses or potential members of Jehovah's
Witnesses]”. As to the four experts' conclusions, the court also stated:
“However, not one of the experts, including
... [the] psychologist, could explain to the court on the basis of what
objective information or research they came to this conclusion regarding
the influence of the literature of Jehovah's Witnesses on people's perceptions.
It is simply the experts' appraisal of this particular
religious organisation and is not supported by any actual facts showing
incitement to religious discord, infringements of the personality and
rights and freedoms of citizens, etc.”
31. The
District Court also referred to the conclusions of an expert examination
of 15 April 1999 performed by the Expert Council for State Expert Examinations
in Religious Studies at the Ministry of Justice. The examination, which
was carried out at the request of the Ministry of Justice for the purpose
of granting re-registration to the Administrative Centre of the Jehovah's
Witnesses in Russia, found, with certain minor reservations concerning
blood transfusion, that Jehovah's Witnesses' teachings inflicted no
harm on citizens. The District Court also had regard to the fact that
in 1998-2000 over 350 religious entities of Jehovah's Witnesses had
obtained State registration in other Russian regions.
32. The
District Court assessed the allegations advanced by the prosecutor and
found that none of them had been based on any objectively verifiable
facts. The court's examination of testimony by the prosecutor's witnesses
who spoke in support of the allegation of coercion into destroying the
family established that “the testimonies simply show the stand relatives
take when a member of their family becomes a Jehovah's Witness and when
it is unacceptable from the relatives' standpoint”.
33. The
District Court determined that the other allegations were likewise unfounded:
“Facts indicating deliberate incitement to
religious discord, discrimination, hostility or violence, coercion into
destroying the family, infringements of the personality and rights and
freedoms of citizens ... were not adduced by the prosecutor or established
by the court...
...[T]he court came to the conclusion that there
is no basis for the dissolution and banning of the activity of the religious
community of Jehovah's Witnesses in Moscow, since it has not been established
that this community in Moscow violates the Russian Constitution or Russian
laws, incites religious discord, coerces members into destroying the
family, infringes the personality or rights or freedoms of citizens,
encourages [others] to commit suicide or to refuse medical care for
individuals who are in a life- or health-threatening condition for religious
reasons.”
34. On
an appeal by the prosecutor, on 30 May 2001 the Moscow City Court quashed
the judgment of 23 February 2001
and remitted the claim for a fresh examination by a different bench.
The City Court held that the District Court had not properly assessed
the circumstances of the case and that it should have ordered a new
expert study in order to elucidate differences between the existing
expert opinions.
E. Attempts to obtain re-registration of the
applicant community
35. On
1 October 1997 a new Law on Freedom of Conscience and Religious Associations
(“the Religions Act”) entered into force. It required all religious
associations that had previously been granted legal-entity status to
bring their articles of association into conformity with the Act and
obtain re-registration from the competent Justice Department.
36. On
29 April 1999 the Ministry of Justice of the Russian Federation re-registered
the Administrative Centre of the Religious Organisation of Jehovah's
Witnesses in Russia as a centralised religious organisation.
37. On
20 October 1999 the first application for re-registration of the applicant
community was lodged with the Moscow Justice Department. On 17 November
1999 the Moscow Justice Department refused to examine the application
on the ground that some documents were missing, without specifying which
documents these were.
38. On
7 December 1999 and 29 May 2000 a second and third application for re-registration
were filed, both of which were rejected by the Moscow Justice Department
on the same ground.
39. On
16 October 2000 the second applicant, Mr Chaykovskiy, sent a written
enquiry to the Moscow Justice Department asking which documents were
missing. On the same day he brought an action against the Moscow Justice
Department before the Presnenskiy District Court of Moscow, seeking
a court order to oblige the Moscow Justice Department to consider the
third application. The court set a hearing date for 22 November 2000
and requested the Moscow Justice Department to provide a response by
23 October 2000.
40. On
23 October 2000 the deputy head of the Moscow Justice Department informed
the applicant community that it had failed to submit the original charter
and registration certificate of 1993. He also informed the applicants
that he was under no legal obligation to specify the missing documents.
41. On
25 October 2000 the applicants filed a fourth application, which included
the original charter and registration certificate. On 24 November 2000
the Moscow Justice Department issued the first formal refusal of re-registration.
It referred to two allegedly incorrect wordings in the submitted documents:
the Moscow community had “adopted”, rather than “approved” its
charter and the organisation had indicated its “legal address” only,
but no “location”.
42. On
12 December 2000 the fifth application was filed, in which the two required
wordings were used. This was the last application because on 31 December
2000 the time-limit for submitting applications for re-registration
expired.
43. On
12 January 2001 the Moscow Justice Department issued the second formal
refusal of re-registration, in respect of the fifth application. It
based its decision on the fact that the proceedings to have the applicant
community dissolved and its activity banned were pending before the
Golovinskiy District Court of Moscow.
44. On
11 January 2001 the fifth applicant, Mr Marchenko, as an individual
and founding member of the Moscow community, filed a complaint with
the Kuzminskiy District Court of Moscow against the Moscow Justice Department's
first refusal of 24 November 2000. The court stayed the proceedings
pending a decision of the Presnenskiy District Court.
45. On
11 April 2001 the third applicant, Mr Denisov, filed a complaint with
the Butyrskiy District Court of Moscow against the Moscow Justice Department's
second refusal of 12 January 2001. The court asked for official information
from the Golovinskiy District Court about the proceedings to dissolve
the applicant community.
46. On
14 September 2001 the Kuzminskiy District Court of Moscow dismissed
the fifth applicant's complaints, finding that the refusal of re-registration
restricted only the rights of the Moscow community, and not those of
the fifth applicant himself. On 10 December 2001 the Moscow City Court
upheld the judgment on appeal.
47. On
12 October 2001 the Butyrskiy District Court of Moscow dismissed the
third applicant's claim. The court held that, pursuant to section 27
§ 3 of the Religions Act, re-registration could not be granted to organisations
that might be liquidated or banned pursuant to section 14 of the Religions
Act. The court added that the third applicant's religious rights were
not restricted by the refusal, which had only entailed legal consequences
for the Moscow community as a legal entity. On 20 February 2002 the Moscow
City Court upheld the judgment on appeal.
48. On
16 August 2002 the Presnenskiy District Court of Moscow allowed the
action in part. The court found that the Moscow Justice Department had
wrongly requested the original documents, copies of which had been available
on file. It held that the Moscow Justice Department's reference to ongoing
proceedings before the Golovinskiy District Court was inadmissible because
it had first invoked this argument before the court and had never referred
to it as a ground for its earlier refusals. The court declared the Moscow
Justice Department's refusals unlawful but did not order re-registration
of the applicant community on the ground that new application forms
for religious organisations had been introduced and that the applicant
community had to submit a fresh application for registration.
49. On
an appeal by the applicant community, on 2 December 2002 the Moscow
City Court upheld the decision of 16 August 2002. It decided that the
application for registration could not be processed, not only because
of the newly introduced application forms, but also with regard to the
ongoing proceedings in the Golovinskiy District Court.
F. The second set of dissolution proceedings
against the applicant community
50. On
30 October 2001 a new round of proceedings began in the Golovinskiy
District Court under a new presiding judge. On 9 November 2001 the hearing
was adjourned.
51. Following
the adjournment, the community of Jehovah's Witnesses in Moscow collected
10,015 signatures on a petition to protest against the prosecutor's
claim that she was protecting the rights of the community members. Copies
of the petition were sent to the District Court, the President, and
the Prosecutor General of the Russian Federation.
52. On
an unspecified date in 2001 the District Court ordered a new composite
psycho-linguistic expert study of the applicant community's literature
and teachings. The proceedings were stayed pending its completion.
53. On
22 January 2004 the composite study was completed and its findings made
available to the court.
54. Following
several oral hearings, on 26 March 2004 the Golovinskiy District Court
of Moscow decided to uphold the prosecution's claim, to dissolve the
applicant community and to impose a permanent ban on its activities.
55. The
District Court found the applicant community responsible for luring
minors into religious associations against their will and without the
consent of their parents (section 3 § 5 of the Religions Act) and for
coercing persons into destroying the family, infringing the personality,
rights and freedoms of citizens; inflicting harm on the health of citizens;
encouraging suicide or refusing on religious grounds medical assistance
to persons in life- or health-threatening conditions; and inciting citizens
to refuse to fulfil their civil duties (section 14 § 2). However, the
court found the applicant community not liable for extremist activity
in the form of inciting religious discord with calls for violent acts
(section 14 § 2). Likewise, it found unproven the allegation that the
applicant community had collected contributions from its members for
its benefit.
56. Regarding
the allegation of “coercion into destroying the family,” the District
Court relied on the statements by seven family members of Jehovah's
Witnesses – five of which were members of the Salvation Committee
– who had been unhappy about their relatives' abidance by the religious
norms, their active involvement in the applicant community and their
estrangement from non-religious family members. Thus, one husband had
blamed the applicant community for the collapse of his family life,
claiming that since “his wife [had] joined the Jehovah's Witnesses,
she fulfil[led] all their orders, [he] c[ould] not discuss anything
with her, or even watch TV with her because of her comments on everybody,
including the leadership of the country and the Orthodox Church”.
Other witnesses complained that their adult children or, in one case,
the daughter-in-law had spent less time caring for elderly relatives
because they had been constantly busy within the community. The District
Court further relied on the majority opinion of the expert study of
4 October 2000 which determined that “the texts of Jehovah's Witnesses
do not contain direct coercion into destroying the family but apply
and propose for application direct psychological pressure which risks
causing the destruction of families”. Assessing the opinion by the
dissenting expert and the findings of the new study of 22 January 2004,
which found no coercion into destroying the family, the District Court
considered that these experts had limited the scope of their inquiry
to publicly available literature of Jehovah's Witnesses and had not
analysed the “actual activity of the Moscow community” or implementation
of the religious commandments and recommendations “in real life”
and their influence on family relations. The District Court rejected
statements by the witnesses for the defence who had Jehovah's Witnesses
in their families and the conclusions of a sociological study of 995
community members, randomly selected, conducted by the Department of
Family Sociology at the Moscow State University on the ground that it
had been based on the lists of respondents supplied by the community
itself and failed to “report a single instance of an internal family
confrontation which objectively existed”.
57. As
to the charge of infringement of the personality, rights and freedoms
of citizens, the District Court firstly found a violation of the right
to privacy in that the applicant community determined the place and
nature of work of its members, recommended that they engage in part-time
employment so as to have time for preaching, prohibited them from celebrating
holidays or birthdays, and required them to preach door to door, thus
also invading other people's privacy. As evidence of attempts to interfere
with other people's private life, the District Court referred to the
criminal conviction of a Mr K. for beating a female community member
who had offered religious literature to his wife at their home. Moreover,
in the District Court's view, the applicant community violated its members'
right to a free choice of occupation as it recommended that they engage
in part-time employment and provided applications for voluntary service
at Bethel, the community centre near St Petersburg, where they only
received a monthly living allowance and no salary.
58. The
District Court found a violation of the constitutional guarantee of
equality between parents in relation to the upbringing and education
of children (Article 38 of the Constitution) because some parents involved
their children in the religious activity of the applicant community
without the permission of the other parent, a non-member of the community.
It relied on the fact that there were pending custody disputes between
parents in Moscow courts where religious education had been in issue.
It noted that where a Witness parent had been represented in the custody
dispute by a community-retained lawyer, this amounted to “a manifestation
of interest in the outcome of the cases of the community itself and
an interference with the family and private affairs of its members”.
The District Court also relied on the opinions of three psychiatrist
witnesses for the prosecution who stated that “the literal following
of the Bible principles, as practised by Jehovah's Witnesses, restricted
the person's independent thinking ... and arrested psychological development”.
In their view, a child who did not celebrate holidays would become “a
social outcast” and the community's teachings “hindered the development
of patriotic feelings and love for the Motherland”.
59. The
District Court found that the applicant community violated the right
to freedom to choose one's religion by resorting to active proselytising
and “mind control”. According to the prosecution experts, Jehovah's
Witnesses were set apart from traditional religions because of the “theocratic
hierarchy of the community”, “their striving to integrate families
into the life of a totalitarian non-secular collective” and “military-like
discipline in domestic life”. The District Court accepted the opinions
of the prosecution experts and rejected the contrary conclusion in the
expert study that the defence expert psychiatrist had conducted of 113
community members on the grounds that “participants had been selected
from lists supplied by the organisations” and that the study “only
concerned the community members whereas their relatives had not been
examined”. The District Court also considered that the petitions signed
by the community members in its support had been “evidence of the
pressure that the community exercised on its members”.
60. Ruling
on the charge of “encouragement of suicide or the refusal of medical
assistance on religious grounds”, the District Court found that under
the influence of the applicant community its members had refused transfusions
of blood and/or blood components even in difficult or life-threatening
circumstances. That finding was based on the following evidence: the
prohibition on blood transfusion contained in the literature of the
applicant community, the “No Blood” card distributed within the
community for the benefit of its members, testimonies by community members
who confirmed carrying such cards, the existence of the Hospital Liaison
Committee with the applicant community, and stories of patients who
had refused a blood transfusion on religious grounds and whose refusal
had been noted in their medical records. The District Court also had
regard to a letter from the Moscow Health Protection Department that
listed a number of instances in which patients had refused blood transfusions
for themselves and, in one case, in respect of a newborn child. Even
though the medical outcome of those cases was not specified, the District
Court held that the proven fact of damage to the health of at least
one individual was a sufficient ground for terminating the activities
of the Moscow community. It further noted the opinions of medical experts
who clarified that bloodless surgery was a prospective trend in medicine
but that in case of certain diseases the transfusion of blood or its
components was still indispensable. Finally, in the District Court's
view, the “No Blood” card contravened the patient's right to take
medical decisions for himself by delegating that right – in the eventuality
of his being unconscious – to his fellow believers.
61. As
to harming the health of citizens, the District Court found that, in
addition to the prohibition on blood transfusion, the activities of
the applicant community had had a “negative influence on the mental
state and mental health of the followers”. This assessment rested
on opinions of non-Witness family members who testified that they had
seen “sudden and negatives changes of personality” in their relatives
who had joined the applicant community and that many participants at
religious meetings of Jehovah's Witnesses had “cried” and had complained
thereafter “about colossal emotional exhaustion”.
62. As
to luring minors into the religious association, the District Court
found, on the basis of statements by two non-Witness parents, that where
a Witness parent involved the child in the activities of the applicant
community, there was an encroachment on the child's freedom of conscience
and the joint right of parents to participate in the child's upbringing.
63. Finally,
the District Court found that the applicant community's literature incited
citizens to “refuse to fulfil their civil duties.” This included
refusal to serve in the army and to perform alternative service and
promotion of “a disrespectful attitude towards State emblems – the
flag and the national anthem”, as well as a prohibition on celebrating
State holidays.
64. The
District Court held that the interference with the applicant community's
rights was justified, prescribed by law and pursued a legitimate aim
because the applicant community had “violated rights and freedoms
of citizens, and its activity led to the destruction of families, encroachments
on the fundamental rights and freedoms of citizens and calls to refuse
to perform duties to society... Taking into account that the [applicant]
community violated constitutional rights and freedoms of citizens, the
contemplated restriction on its rights and termination of its activity
is justified and proportionate to the constitutionally significant aims”.
65. The
applicant community was ordered to bear the costs of the expert studies
of 4 October 2000 and 22 January 2004 and to pay costs of 102,000 Russian
roubles to the State.
66. The
applicant community appealed, claiming, in particular, that the interference
with its right to freedom of religion was not justified from the standpoint
of Articles 9 and 11 of the Convention. It also invoked Articles 6,
10, 14 and 17 of the Convention.
67. On
16 June 2004 the Moscow City Court dismissed the applicants' appeal
in a summary fashion and upheld the judgment of the Golovinskiy District
Court, endorsing its reasons.
G. “No Blood” card
68. The
“No Blood” card referred to in the proceedings is a pre-printed
foldable card that bears the words “No Blood” in capital letters
on the front page and empty fields to be filled out concerning the person(s)
to be contacted in case of emergency and the holder's allergies, diseases
and medicine(s). The text inside the card reads as follows:
“MEDICAL DIRECTIVE / RELEASE FROM LIABILITY
I, [name], have filled out this directive as
an official statement of my will. The instructions contained therein
reflect my firm and conscious decision.
I direct that under no circumstances – even
if doctors consider it necessary to save my life or health – shall
any blood transfusion be performed on me ... I consent to the use of
blood substitutes, hemodiluting solutions... or bloodless methods of
treatment.
By this legal directive I exercise my right to
consent to medical treatment or refuse it in accordance with my principles
and convictions. I am a Jehovah's Witness and issue this directive in
pursuance of the Biblical precepts...
I release doctors, anaesthetists, hospital and
medical personnel from liability for any consequences of my refusal
of blood provided that I have been given full alternative qualified
medical assistance.
Should I be unconscious, the person listed on
the reverse side of the card [emergency contacts] may represent me before
others, acting in accordance with this directive.
[Date, signature, address, phone number, and
signatures of two witnesses].”
II. RELEVANT LAW AND PRACTICE
A. Constitution of the Russian Federation
69. Article
28
guarantees freedom of religion, including the right to profess either
alone or in community with others any religion or to profess no religion
at all, to freely choose, have and share religious and other beliefs
and manifest them in practice.
70. Article
30 provides that everyone shall have the right to freedom of association.
71. Article
38 establishes that maternity, childhood and the family shall be protected
by the State. The parents have equal rights and obligations with regard
to providing care for children and their upbringing.
B. The Religions Act
72. On
1 October 1997 the Federal Law on the Freedom of Conscience and Religious
Associations (no. 125-FZ of 26 September 1997 – “the Religions Act”)
entered into force.
73. The
Religions Act prohibits the involvement of minors in religious associations,
as well as the religious education of minors against their will and
without the consent of their parents or guardians (section 3 § 5).
74. The
founding documents of religious organisations that had been established
before the Religions Act were to be amended to conform to the Act and
submitted for re-registration. Until so amended, the founding documents
remained operative in the part which did not contradict the terms of
the Act (section 27 § 3). Re-registration of religious organisations
was to be completed by 31 December 2000 (section 27 § 4, with subsequent
amendments).
75. The
list of documents required for (re-)registration was set out in section
11 § 5 and read as follows:
“— application for registration;
— list of founders of the religious organisation
indicating their nationality, place of residence and dates of birth;
— charter (articles of association) of the
religious organisation;
— minutes of the constituent assembly;
...
— information on the address (location) of
the permanent governing body of the religious organisation at which
contact with the religious organisation is to be maintained...”
76. Section
12 § 1 stated that (re-)registration of a religious organisation could
be refused if:
“— the aims and activities of a religious
organisation contradict the Russian Constitution or Russian laws –
with reference to specific legal provisions;
— the organisation has not been recognised
as a religious one;
— the articles of association or other submitted
materials do not comply with Russian legislation or contain inaccurate
information;
— another religious organisation has already
been registered under the same name;
— the founder(s) has (have) no capacity to
act.”
77. Section
14 § 2 (as amended on 29 June 2004) provides for the following grounds
for dissolving a religious organisation by judicial decision and banning
its activity:
“— breach of public security and
public order;
— actions aimed at engaging in extremist
activities;
— coercion into destroying the family
unit;
— infringement of the personality,
rights and freedoms of citizens;
— infliction of harm, established
in accordance with the law, on the morals or health of citizens, including
by means of narcotic or psychoactive substances, hypnosis, or committing
depraved and other disorderly acts in connection with religious activities;
— encouragement of suicide or the
refusal on religious grounds of medical assistance to persons in life-
or health-threatening conditions;
— hindrance to receiving compulsory
education;
— coercion of members and followers
of a religious association and other persons into alienating their property
for the benefit of the religious association;
— hindering a citizen from leaving
a religious association by threatening harm to life, health, property,
if the threat can actually be carried out, or by application of force
or commission of other disorderly acts;
— inciting citizens to refuse to fulfil
their civil duties established by law or to commit other disorderly
acts.”
78. Section
27 § 3 establishes that an application for re-registration must be
refused if there are grounds for dissolving the religious organisation
and banning its activity as set out in section 14 § 2.
79. Under
the Religions Act, the following rights may be exercised solely by registered
religious organisations:
· the right to establish and maintain religious
buildings and other places of worship or pilgrimage (section 16 § 1);
· 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 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 hire employees (section 24).
80. In
addition, the following rights are explicitly reserved to registered
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).
C. Fundamentals of Russian Legislation on Health
Protection of Citizens (no. 5487-I of 22 July 1993)
81. A
citizen or his or her legal representative may refuse medical assistance
or require that it be terminated, save in the circumstances listed in
Article 34. In that case the possible consequences of such refusal should
be presented in an accessible form to the citizen or his or her legal
representative. The refusal must be noted in the medical record and
countersigned by the citizen and a medical specialist (Article 33 §§
1-2).
82. If
the parents or guardians of a child below fifteen years of age refuse
medical assistance which is necessary for saving the child's life, the
medical institution may apply to a court for the protection of the child's
interests (Article 33 § 3).
83. Medical
assistance shall be provided without the consent of the individuals
concerned if they suffer from highly contagious diseases, grave mental
disorders or if they have committed a criminal offence and been ordered
to follow medical treatment by a judicial decision (Article 34).
D. Relevant case-law
1. Russia
84. On
14 November 2000 the Supreme Court of the Tatarstan Republic upheld
at final instance a judgment of the lower court by which the prosecutor's
request to liquidate the local organisation of Jehovah's Witnesses had
been refused. One of the grounds advanced by the prosecutor in support
of the liquidation claim was that a Witness mother had refused a blood
transfusion for her child. The Supreme Court noted that the mother had
refused a blood transfusion but had been in favour of blood substitutes
which had been successfully used during surgery. It also pointed out
that the teachings of Jehovah's Witnesses did not require believers
to refuse blood but let everyone make an independent decision on that
issue.
2. Other jurisdictions
85. In
1990 the Ontario Supreme Court in Canada upheld a decision of the lower
court to hold a medical doctor liable for administering blood transfusions
to an unconscious patient carrying a card stating that she was a Jehovah's
Witness and, as a matter of religious belief, rejected blood transfusions
under any circumstances (
Malette v. Shulman 72 O.R. 417). It held, in particular, as
follows:
“25... The principles of self-determination
and individual autonomy compel the conclusion that the patient may reject
blood transfusions even if harmful consequences may result and even
if the decision is generally regarded as foolhardy... To transfuse a
Jehovah's Witness, in the face of her explicit instructions to the contrary,
would, in my opinion, violate her right to control her own body and
show disrespect for the religious values by which she has chosen to
live her life...
34 The state undoubtedly has a strong interest
in protecting and preserving
the lives and health of
its citizens. There clearly are circumstances where this interest may
override the individual's right to self-determination. For example,
the state may, in certain cases, require that citizens submit to medical
procedures in order to eliminate a health threat to the community...
35 The state's interest in preserving the life
or health of a competent patient must generally give way to the patient's
stronger interest in directing the course of her own life. As indicated
earlier, there is no law prohibiting a patient from declining necessary
treatment... Recognition of the right to reject medical treatment cannot,
in my opinion, be said to depreciate the interest of the state in life
or in the sanctity of life. Individual free choice and self-determination
are themselves fundamental constituents of life. To deny
individuals freedom of choice, with respect to their health care, can
only lessen and not enhance the value of life...”
86. A
1992 landmark case from the United Kingdom involved an adult daughter
of a Jehovah's Witness who had been prevailed upon by her mother to
refuse blood transfusions for religious reasons (
In re T. (Adult: Refusal of Treatment) 3 Weekly Law Reports
782 (Court of Appeal)). Lord Donaldson gave the following summary of
his opinion:
“1. Prima facie every adult has the right and
capacity to decide whether or not he will accept medical treatment,
even if a refusal may risk permanent injury to his health or even lead
to premature death. Furthermore, it matters not whether the reasons
for the refusal were rational or irrational, unknown or even non-existent.
This is so notwithstanding the very strong public interest in preserving
the life and health of all citizens. However, the presumption of capacity
to decide, which stems from the fact that the patient is an adult, is
rebuttable...
5. In some cases doctors will not only have to
consider the capacity of the patient to refuse treatment, but also whether
the refusal has been vitiated because it resulted not from the patient's
will, but from the will of others. It matters not that those others
sought, however strongly, to persuade the patient to refuse, so long
as in the end the refusal represented the patient's independent decision.
If, however, his will was overborne, the refusal will not have represented
a true decision. In this context the relationship of the persuader to
the patient – for example, spouse, parents or religious adviser –
will be important, because some relationships more readily lend themselves
to overbearing the patient's independent will than do others...”
87. In
United States law, the doctrine of informed consent required for any
kind of medical treatment has been firmly entrenched since 1914 when
Justice Cardozo, on the Court of Appeals of New York, described this
doctrine as follows: “Every human being of adult years and sound mind
has a right to determine what shall be done with his own body, and a
surgeon who performs an operation without his patient's consent commits
an assault” (
Schloendorff v. Society of New York Hospital, 211 N.Y. 125,
105 N.E. 92). The logical corollary of the doctrine of informed consent
is that the patient generally possesses the right not to consent, that
is, to refuse treatment (
Cruzan v. Director, MDH, 497 U.S. 261 (1990)). The following
summary of the relevant case-law can be found in the case of
Fosmire v. Nicoleau (75 N.Y.2d 218, 551 N.E.2d 77, 551 N.Y.S.2d
876 (1990):
“The State has a well-recognized interest in
protecting and preserving the lives of its citizens. ... [A] distinction
should be drawn between the State's interest in protecting the lives
of its citizens from injuries by third parties, and injuries resulting
from the individual's own actions (see, e.g., Public Health Trust v. Wons, 541 So.2d 96, 98 [Fla.1989, Ehrlich,
Ch. J., concurring]). When the individual's conduct threatens injury
to others, the State's interest is manifest and the State can generally
be expected to intervene. But the State rarely acts to protect individuals
from themselves, indicating that the State's interest is less substantial
when there is little or no risk of direct injury to the public. This
is consistent with the primary function of the State to preserve and
promote liberty and the personal autonomy of the individual (Rivers v. Katz, supra). ... The State will intervene to prevent
suicide ... but merely declining medical care, even essential treatment,
is not considered a suicidal act or indication of incompetence (Matter of Storar,
supra, 52 N.Y.2d at 377-378, n. 6, 438 N.Y.S.2d 266, 420 N.E.2d 64).”
88. The
right of an individual to refuse blood transfusions on religious grounds
and to be compensated in damages if such transfusion has been carried
out against the patient's wishes has also been upheld by courts in other
jurisdictions (see, for example,
Phillips v. Klerk, Case No. 19676/82; Supreme Court of South
Africa [1983];
Bahamondez, Marcelo v. Medida Cautelar, Corte Suprema de Justicia
de la Nación (Argentina, 6 April 1993); Sentence No. 166/1996
in case of Mr Miguel Angel, Constitutional Court of Spain,
28 October 1996;
Ms A. and her heirs v. Dr B. and Institute of Medical Science,
Case No. 1998 (O) Nos. 1081, 1082, 29 February 2000, Supreme Court of
Japan).
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
89. The
relevant part of the Report by the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee, doc. 9396, 26 March 2002) on the honouring of obligations
and commitments by the Russian Federation stated:
“95. The Russian Constitution safeguards freedom
of conscience and of religion (article 28); the equality of religious
associations before the law and the separation of church and state (article
14), and offers protection against discrimination based on religion
(article 19). The law on freedom of religion of December 1990 has led
to a considerable renewal of religious activities in Russia. According
to religious organisations met in Moscow, this law has opened a new
era, and led to a revitalisation of churches. It was replaced on 26
September 1997 by a new federal law on freedom of conscience and religious
associations. This legislation has been criticised both at home and
abroad on the grounds that it disregards the principle of equality of
religions.
96. ...In February 2001, the Ombudsman on Human
Rights, Oleg Mironov, also acknowledged that many articles of the 1997
law “On Freedom of Conscience and Religious Associations” do not
meet Russia's international obligations on human rights. According to
him, some of its clauses have led to discrimination against different
religious faiths and should therefore be amended. ...
98. According to the regulations by the Ministry
of Justice, - responsible for the implementation of the law on freedom
of conscience and religious associations -, religious organisations
established before the law came into force (26 September 1997) had to
re-register before 31 December 2000.
99. The registration process was finally completed
on 1 January 2001 as the State Duma decided to extend the deadline twice.
About 12 000 religious organisations and groups have been registered,
and only 200 were refused their registration, most of them because they
failed to produce a complete file. Many others have, for a variety of
reasons, failed to register. The Minister of Justice, Mr Chaika strongly
rejected allegations that the Orthodox Church had exerted pressure on
the Ministry to prevent some religious organisations from obtaining
their registration. Mr Chaika also indicated that experts of the Ministry
had “closely examined” the status of the Salvation Army and the
Jehovah's Witnesses, and had come to the conclusion that nothing prevented
the latter's' registration at the federal level. ...
101. Indeed, there have been cases where, even
if a religious organisation had re-registered nationally, local authorities
created obstacles. This has especially been the case with the Jehovah's
Witnesses, whose Moscow congregation has long been the target of civil
and criminal proceedings designed to prevent its activities.
102. The Jehovah's Witnesses were registered
at federal level in 1999, and its 360 communities have also been registered
throughout Russia. Nevertheless, the community in Moscow was forced
completely underground and prevented from possessing properties and
places of worship. The Moscow civil trial against Jehovah's Witnesses
(since 1995) has been considered by many as an important test case.
The co-rapporteurs thought then that the Moscow case has come to an
end with a judgment issued on 23 February 2001, dismissing the charges
against Jehovah's Witnesses. However, on 30 May 2001, the Moscow City
Court set aside this ruling and ordered the Golovinskiy District Court
to hear the case once again. The retrial started on 30 October 2001.
Until a definitive ruling is reached, Jehovah's Witnesses in Moscow
will be without registration and unable to profess their faith without
hindrance. The co-rapporteurs regard the length of the judicial examination
in this case as an example of harassment against a religious minority
and believe that after six years of criminal and legal proceedings the
trial should finally be halted.”
90. Resolution
1277 (2002) on the honouring of obligations and commitments by the Russian
Federation adopted by the Parliamentary Assembly of the Council of Europe
on 23 April 2002, noted as follows:
“8. However, the Assembly is concerned about
a number of obligations and major commitments with which progress remains
insufficient, and the honouring of which requires further action by
the Russian authorities: ...
xiv. the Assembly regrets the problems of the
Salvation Army and Jehovah's Witnesses in Moscow, but welcomes the decision
of the Russian authorities to ensure that the problem of local discrimination
and harassment of these religious communities be brought to an end;
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES
9 AND 11 OF THE CONVENTION ON ACCOUNT OF DISSOLUTION OF THE APPLICANT
COMMUNITY
91. The
applicants complained that the Russian courts' judgments dissolving
the applicant community and banning its activities had violated their
rights to freedom of religion, expression and association. Article 9
provides 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.”
Article
11 provides as follows:
“1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others, including the right
to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or public
safety, for the prevention of disorder or crime, for the protection
of health or morals or for the protection of the rights and freedoms
of others...”
A. Submissions by the parties
1. The applicants
92. The
applicants submitted that there had been no credible or reliable evidence
supporting the adverse findings made by the Russian courts against the
applicant community. All of the findings had been based solely on an
assessment of Jehovah's Witnesses' literature and there had been no
indication that any community members had been forced or prevailed upon
to act in a specific way. The literature all emanated from the same
general headquarters of Jehovah's Witnesses and was distributed worldwide
to over 200 countries – including forty-five Council of Europe member
States – in 150 local languages, while maintaining the same content.
However, there had not been any conviction based on that literature
in Russia or in any jurisdiction with similar law. No specific “actions”
of the applicant community had been discussed during the trial; on the
other hand, no less than fourteen complete court days had been devoted
exclusively to discussion of the Holy Scriptures and the court-ordered
psycho-linguistic study contained references to no fewer than 205 scriptural
questions, many of which had been read and discussed while evidence
was being heard.
93. The
applicants claimed that the dissolution of the applicant community had
not been “prescribed by law” because the relevant provisions of
the Religions Act had been imprecise and unforeseeable in their application.
It had not pursued a legitimate aim or met a pressing social need, but
rather fulfilled the interests of the Russian Orthodox Church and its
Salvation Committee. Furthermore, the total ban and dissolution of a
group of Christians holding and practising their beliefs in Moscow had
been disproportionate to any alleged risk inherent in their literature,
unsupported as it had been by any “actions” or “activities”
of the applicants.
94. Finally,
the applicants pointed out that the banning of the applicant community
had had numerous adverse consequences for its members. They had been
assaulted and beaten in the course of their Christian ministry without
any redress from the authorities; they had stood in the street in the
rain after being locked out of premises which they had rented to hold
a Christian assembly; and they had resorted to meeting in the forest
because the use of the assembly hall had no longer been possible. Since
the Moscow community had been stripped of its legal-entity status, it
had been prevented from constructing or renting places of worship and
from acquiring, importing or disseminating religious literature, etc.
2. The Government
95. The
Government submitted that the Russian courts had reached the justified
conclusion that the applicant community had breached the fundamental
rights and freedoms of Russian citizens, and that its activity had led
to the disintegration of families and had been connected with calls
for refusal to fulfil civic duties, such as military or alternative
civilian service. They had also established that the applicant community
had negatively influenced the mental health of individuals, recommended
that they engage in part-time employment and prohibited them from celebrating
State holidays and birthdays. Minors and teenagers had been involved
in preaching without the consent of the other, non-Jehovah's Witness
parent and without regard for their own views and opinions. The refusal
of blood transfusion on religious grounds had led to grave consequences,
such as the deterioration of health and the impossibility for doctors
to render medical assistance. Finally, the literature disseminated by
the applicant community had contained views and ideas that undermined
respect for other religions.
96. In
the Government's submission, what set Jehovah's Witnesses apart from
“traditional religions” was the “salient theocratic hierarchy”
of the community, “mindless submission” of individual members, aspiration
to integrating families into the life of a “totalitarian non-secular
collective” and “paramilitary discipline”. However, the Government
maintained that in the framework of the dissolution proceedings the
courts had not assessed the creed or views of Jehovah's Witnesses but
merely examined whether or not the applicant community as a legal entity
had acted in compliance with Russian laws and with respect for the rights
and freedoms of others.
97. The
Government claimed that the interference in the form of dissolution
of the applicant community had been justified, prescribed by law and
had also pursued a legitimate aim. They referred to the Court's position
to the effect that the State was “entitled to verify whether a movement
or association carries on, ostensibly in pursuit of religious aims,
activities which are harmful to the population” (Manoussakis and Others v. Greece, 26 September 1996, § 40, Reports 1996-IV) and also “may legitimately consider it necessary
to take measures aimed at repressing certain forms of conduct... judged
incompatible with respect for the freedom of thought, conscience and
religion of others” (Otto-Preminger-Institut v. Austria, 20 September 1994, § 47,
Series A no. 295-A).
B. Admissibility
98. The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
1. General principles
99. The
Court refers to its settled case-law to the effect that, as enshrined
in Article 9, freedom of thought, conscience and religion is one of
the foundations of a “democratic society” within the meaning of
the Convention. It is, in its religious dimension, one of the most vital
elements that go to make up the identity of believers and their conception
of life, but it is also a precious asset for atheists, agnostics, sceptics
and the unconcerned. The pluralism indissociable from a democratic society,
which has been dearly won over the centuries, depends on it (see Metropolitan Church of Bessarabia and Others v. Moldova, no.
45701/99, § 114, ECHR 2001-XII). While religious freedom is primarily
a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one's] religion” alone
and in private or in community with others, in public and within the
circle of those whose faith one shares. Since religious communities
traditionally exist in the form of organised structures, Article 9 must
be interpreted in the light of Article 11 of the Convention, which safeguards
associative life against unjustified State interference. Seen in that
perspective, the right of believers to freedom of religion, which includes
the right to manifest one's religion in community with others, encompasses
the expectation that believers will be allowed to associate freely,
without arbitrary State intervention. Indeed, the autonomous existence
of religious communities is indispensable for pluralism in a democratic
society and is thus an issue at the very heart of the protection which
Article 9 affords. The State's duty of neutrality and impartiality,
as defined in the Court's case-law, is incompatible with any power on
the State's part to assess the legitimacy of religious beliefs (see Metropolitan Church of Bessarabia, cited above, §§ 118 and
123, and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR
2000-XI).
100. The
Court further reiterates that the right to form an association is an
inherent part of the right set forth in Article 11. That citizens should
be able to form a legal entity in order to act collectively in a field
of mutual interest is one of the most important aspects of the right
to freedom of association, without which that right would be deprived
of any meaning. The way in which national legislation enshrines this
freedom and its practical application by the authorities reveal the
state of democracy in the country concerned. Certainly States have a
right to satisfy themselves that an association's aim and activities
are in conformity with the rules laid down in legislation, but they
must do so in a manner compatible with their obligations under the Convention
and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, § 40). The State's
power to protect its institutions and citizens from associations that
might jeopardise them must be used sparingly, as exceptions to the rule
of freedom of association are to be construed strictly and only convincing
and compelling reasons can justify restrictions on that freedom. Any
interference must correspond to a “pressing social need”; thus,
the notion “necessary” does not have the flexibility of such expressions
as “useful” or “desirable” (see Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 94 95, 17 February
2004, with further references).
2. Existence of an interference
101. The
Court refers to its constant case-law to the effect that a refusal by
the domestic authorities to grant legal-entity status to an association
of individuals, religious or otherwise, amounts to an interference with
the exercise of the right to freedom of association (see
Gorzelik and Others, cited above, § 52
et passim, ECHR 2004-I, and
Sidiropoulos and Others, cited above, § 31
et passim). The authorities' refusal to register a group or
their decision to dissolve it have been found by the Court to affect
directly both the group itself and also its presidents, founders or
individual members (see
Association of Citizens Radko and Paunkovski v. “the former Yugoslav
Republic of Macedonia”, no. 74651/01, § 53, ECHR 2009-... (extracts);
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; and
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 an 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). The same approach was applicable in the situation where a previously
existing association has been dissolved by a decision of the domestic
authorities (see
Association of Citizens Radko and Paunkovski, cited above,
and
Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, §§ 30-32,
ECHR 2006-II, and
Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98,
§ 50, ECHR 2003-II).
102. The
decision by the Russian courts to dissolve the applicant community and
to ban its activities had the effect of stripping it of legal personality
and prohibiting it from exercising 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 79 above), which,
as the Court has consistently held, 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 Russian Religions
Act reserved a panoply of rights to registered religious organisations
and explicitly excluded the possibility of such rights being exercised
by either non-registered religious groups or non-religious legal entities
(see paragraphs 79 and 80 above). The exclusive rights of religious
organisations included, in particular, such fundamental aspects of religious
practice 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.
103. It
follows that, as a result of the Russian courts' decisions, the applicant
community ceased to exist as a registered religious organisation and
that the individual applicants, being its members, were divested of
the right to manifest their religion in community with others and to
carry on the activities which are indispensable elements of their religious
practice. The Court finds that this amounted to an interference with
the applicants' rights under Article 9 of the Convention interpreted
in the light of Article 11.
3. Justification for the interference
104. Such
an interference will constitute a breach of Articles 9 and 11 unless
it was “prescribed by law”, pursued one or more of the legitimate
aims set out in paragraph 2 of that provision and was “necessary in
a democratic society” for the achievement of those aims (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC],
nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 51, ECHR 2003-II).
(a) Whether the interference was “prescribed
by law”
105. The
interference with the applicants' rights, which resulted from the dissolution
of the applicant community and banning of its activities, was based
on the provisions of section 14 of the Religions Act and effected through
judicial decisions given by the Russian courts. Accordingly, the Court
is prepared to accept that it was prescribed by law.
(b) Whether the interference pursued a legitimate
aim
106. According
to the judgments of the Russian courts, the dissolution of the applicant
community and banning of its activities was necessary to prevent it
from breaching the rights of others, inflicting harm on its members,
damaging their health and impinging on the well-being of children.
107. The
Court reiterates that States are entitled to verify whether a movement
or association carries on, ostensibly in pursuit of religious aims,
activities which are harmful to the population or to public safety (see Metropolitan Church of Bessarabia and Others, cited above,
§ 113, and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria,
nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX). Having regard to the
findings of the domestic courts, the Court considers that the interference
pursued the legitimate aim of the protection of health and the rights
of others which is listed in the second paragraph of Articles 9 and
11.
(c) Whether the interference was “necessary
in a democratic society”
108. The
Court reiterates that the exceptions to the rights of freedom of religion
and association are to be construed strictly and that only convincing
and compelling reasons can justify restrictions on these rights. When
the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to
review the decisions they delivered in the exercise of their discretion.
This does not mean that it has to confine itself to ascertaining whether
the respondent State exercised its discretion reasonably, carefully
and in good faith; it must look at the interference complained of in
the light of the case as a whole and determine whether it was “proportionate
to the legitimate aim pursued” and whether the reasons adduced by
the national authorities to justify it are “relevant and sufficient”.
In so doing, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied
in the Convention and, moreover, that they based their decisions on
an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January
1998, § 47, Reports 1998-I, and Partidul Comunistilor (Nepeceristi) and Ungureanu, cited above,
§ 49).
(i) On coercion into destroying the family
109. The
first ground for banning the applicant community was the charge that
it had forced the families of its members to break up. Witnesses for
the prosecution had attributed to the applicant community a deterioration
of their relationships with their relatives who had become community
members, lived by the tenets of the Witnesses' faith, abstained from
celebrating public and private holidays, and spent much of their free
time within the community and with fellow believers. An extensive study
of almost a thousand Witnesses families prepared by the defence had
been rejected by the District Court on the ground that it had not reported
any rifts in the Witnesses families which, in the District Court's view,
must have “objectively existed”.
110. The
Court observes at the outset that the term “coercion” in its ordinary
meaning implies an action directed at making an individual do something
against his or her will by using force or intimidation to achieve compliance.
The domestic courts did not give examples of any forceful or threatening
action on the part of the applicant community calculated to break the
families of its members apart. There was nothing to indicate that the
applicant community had made any demands on its members as a condition
for continuing their family relationship or, vice versa, that it had
imposed any kind of condition or made any demands on non-Witness members
of the families of its followers under threat of breaking up their family
relationship. In fact, the prosecution experts acknowledged that the
texts of Jehovah's Witnesses did not contain “direct coercion into
destroying the family”. Although they opined that “direct psychological
pressure” applied by the community carried with it the risk of family
break-ups, they were unable to identify any victims of the alleged psychological
pressure.
111. It
further appears from the testimonies by witnesses that what was taken
by the Russian courts to constitute “coercion into destroying the
family” was the frustration that non-Witness family members experienced
as a consequence of disagreements over the manner in which their Witness
relatives decided to organise their lives in accordance with the religious
precepts, and their increasing isolation resulting from having been
left outside the life of the community to which their Witness relatives
adhered. It is a known fact that a religious way of life requires from
its followers both abidance by religious rules and self-dedication to
religious work that can take up a significant portion of the believer's
time and sometimes assume such extreme forms as monasticism, which is
common to many Christian denominations and, to a lesser extent, also
to Buddhism and Hinduism. Nevertheless, as long as self-dedication to
religious matters is the product of the believer's independent and free
decision and however unhappy his or her family members may be about
that decision, the ensuing estrangement cannot be taken to mean that
the religion caused the break-up in the family. Quite often, the opposite
is true: it is the resistance and unwillingness of non-religious family
members to accept and to respect their religious relative's freedom
to manifest and practise his or her religion that is the source of conflict.
It is true that friction often exists in marriages where the spouses
belong to different religious denominations or one of the spouses is
a non-believer. However, this situation is common to all mixed-belief
marriages and Jehovah's Witnesses are no exception.
112. The
Court is not satisfied that the findings of the domestic courts were
substantiated. The District Court was able to identify only six instances
of family conflicts in the families of seven witnesses, five of whom
were members of the Salvation Committee, an interested party in the
case. However, given that the Moscow community was some ten thousand
members strong, their personal stories could not furnish a reasonable
basis for the finding that the Witnesses teachings had been the cause
of an increased number of conflicts in Witnesses families. Such a finding
could be reasonably grounded, for example, on a statistical comparison
between the number of broken families of non-religious people, the number
of broken families of traditional – for example, Orthodox Christian
– believers, and the number of broken Jehovah's Witnesses families.
Only if the latter was significantly higher than the former ones would
this prove a causal link between Jehovah's Witnesses' teachings and
family break-ups. The domestic courts did not attempt to carry out such
a comparison.
113. Finally,
the study prepared by the defence of the family life of almost a thousand
community members was rejected for reasons that do not appear relevant
or sufficient to the Court. Firstly, since the study was intended to
cover families in which at least one person was a member of the applicant
community, making the selection of respondents from the list of the
community members was the only way to proceed. The risk of bias was
eliminated by means of random selection of study participants. Secondly,
the absence of reported family conflicts could not, in itself, vitiate
the quality of the study or make it unreliable. However, the rejection
of the study on that ground attested to the District Court's preconceived
idea that such conflicts were inevitable in Jehovah's Witnesses families
and revealed a bias in its assessment of the evidence.
114. In
the light of the above considerations, the Court finds that the charge
that Jehovah's Witnesses forced family break-ups was not borne out and
that the findings of the domestic courts were not grounded on an acceptable
assessment of relevant facts.
(ii) Infringement of the personality, rights
and freedoms of citizens
115. According
to the findings of the Russian courts, the applicant community committed
multiple breaches of various rights and freedoms of Russian citizens,
including the constitutional rights to privacy and to choice of religion,
the right of parents to educate their children, children's right to
rest, leisure and participation in recreational activities, the right
to choose one's occupation, etc. The Court will now examine each group
of alleged violations in turn.
(α) Alleged infringement of the right
of community members to respect for their private life and their right
to free choice of occupation
116. Firstly,
the domestic courts considered that the following aspects of the applicant
community's life violated the constitutional right of its members to
inviolability of their private life and the right to choice of occupation:
· determination of the place and nature of
employment;
· preference for part-time work that allows
time to preach;
· unpaid work at the Bethel community centre
in St Petersburg;
· regulation of leisure activities;
· ban on celebrating holidays and birthdays;
· mandatory missionary activity and “door-to-door”
preaching.
117. The
Court reiterates that “private life” is a broad term encompassing
the sphere of personal autonomy within which everyone can freely pursue
the development and fulfilment of his or her personality and to establish
and develop relationships with other persons and the outside world.
It also extends further, comprising activities of a professional or
business nature since it is, after all, in the course of their working
lives that the majority of people have a significant, if not the greatest,
opportunity of developing relationships with the outside world (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR
2007-IV; Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 42-50, ECHR 2004-VIII;
and Niemietz v. Germany, 16 December 1992, § 29, Series A no.
251-B). In the light of these principles, the decisions of Jehovah's
Witnesses whether to take full-time or part-time, paid or unpaid employment,
whether and how to celebrate events significant to them, including religious
and personal events such as wedding anniversaries, births, housewarmings,
university admissions, were matters that fell within the sphere of “private
life” of community members.
118. The
Court emphasises that it is a common feature of many religions that
they determine doctrinal standards of behaviour by which their followers
must abide in their private lives. Religious precepts that govern the
conduct of adherents in private life include, for instance, regular
attendance at church services, performance of certain rituals such as
communion or confession, observance of religious holidays or abstention
from work on specific days of the week (see Casimiro and Ferreira v. Luxembourg (dec.), no. 44888/98, 27
April 1999, and Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996),
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),
dietary restrictions (see Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95,
§ 73, ECHR 2000-VII), and many others. Jehovah's Witnesses' regulations
on allowing sufficient time for religious activities and abstaining
from celebrating non-Witnesses or secular events were in that sense
not fundamentally different from similar limitations that other religions
impose on their followers' private lives. By obeying these precepts
in their daily lives, believers manifested their desire to comply strictly
with the religious beliefs they professed and their liberty to do so
was guaranteed by Article 9 of the Convention in the form of the freedom
to manifest religion, alone and in private.
119. The
Court further reiterates that the State's duty of neutrality and impartiality
prohibits it from assessing the legitimacy of religious beliefs or the
ways in which those beliefs are expressed or manifested (see Leyla Şahin, cited above, § 107, and Hasan and Chaush, cited above, § 78).
Accordingly, the State has a narrow margin of appreciation and must
advance serious and compelling reasons for an interference with the
choices that people may make in pursuance of the religious standard
of behaviour within the sphere of their personal autonomy. An interference
may be justified in the light of paragraph 2 of Article 9 if their choices
are incompatible with the key principles underlying the Convention,
such as, for example, polygamous or underage marriage (see Khan v. the United Kingdom, no. 11579/85, Commission decision
of 7 July 1986) or a flagrant breach of gender equality (see Leyla Şahin, cited above, § 115), or if they are imposed on
the believers by force or coercion, against their will.
120. In
the present case the domestic judgments did not cite any evidence showing
that members of the applicant community had been forced or prevailed
upon to prefer a specific profession, place of work or working hours.
On the contrary, community members testified in the proceedings that
they followed the doctrines and practices of Jehovah's Witnesses of
their own free will and personally determined for themselves their place
of employment, the balance between work and free time, and the amount
of time devoted to preaching or other religious activities. Jehovah's
Witnesses who carried out religious service at the Bethel community
centre were not employees of the centre but unpaid volunteers. For that
reason, the provisions of labour law relating to standard working hours,
paid holidays and professional orientation were not applicable to them,
as they did not work there for material gain. It is also noteworthy
that the Bethel community centre was located in the vicinity of St Petersburg
and managed by the Administrative Centre of Jehovah's Witnesses, a federal
religious organisation, but the domestic judgments did not give any
reasons for the finding that the applicant community in Moscow should
be responsible for the functioning of a centre outside its territorial
and legal control.
121. It
follows that what was taken by the Russian courts to constitute an infringement
by the applicant community of the right of its members to respect for
their private life was in fact a manifestation of their beliefs in their
private lives in the sense protected by Article 9. Voluntary work or
part-time employment or missionary activities are not contrary to the
Convention principles and the Court is unable to discern any pressing
social need that could have justified the interference.
(β) Alleged infringement of the right
of others to respect for private life
122. The
Russian courts also found that the Witnesses' practice of door-to-door
preaching had invaded the privacy of others. The only evidence produced
to support this finding was the criminal conviction of Mr K. for attacking
a Jehovah's Witness who had come to talk to his wife in their home.
In the Court's view, this conviction is capable of proving that a member
of the applicant community had been a victim of a violent criminal offence
but not that she had committed any offence herself. As the Court observed
in the Kokkinakis case, “bearing Christian witness... [is] an essential
mission and a responsibility of every Christian and every Church”
which has to be distinguished from improper proselytism that takes the
form of offering material or social advantages with a view to gaining
new members for a church, exerting improper pressure on people in distress
or in need or even using violence or brainwashing (see Kokkinakis, cited above, § 48). Furthermore, Russian law does
not provide for the offence of proselytism and no evidence of improper
methods of proselytising by members of the applicant community was produced
or examined in the dissolution proceedings.
(γ) Alleged infringement of the parental
rights of non-Witness parents
123. The
Russian courts held the applicant community responsible for the situation
obtaining in some mixed-belief marriages where a Jehovah's Witness parent
involved the child in the activities of the community despite the objections
of the non-Witness parent. In the courts' view, that situation amounted
to an encroachment on the child's freedom of conscience and on the other
parent's right to take part in the child's education.
124. The
Court observes that the Russian Religions Act prohibits minors from
being involved in religious associations or being taught religion against
their will or without the consent of their parents or guardians (see
paragraph 73 above). This provision prohibits those who are not parents
or substitute parents from coercing a child into participation in religious
practices or education. In holding the applicant community responsible,
the Russian courts did not point to any evidence showing that the community
itself or any non-parent members of the community had resorted to improper
methods for involving minors in its activities, whether against their
own will or that of their parents. On the contrary, the involvement
of children in the community's religious life appears to have been approved
and encouraged by one of the parents who had been a Jehovah's Witness
himself or herself. Thus, the situation which had been imputed to the
applicant community had not actually been related to the community's
actions, but to the actions of its individual members who were parents
of those children.
125. The
Court reiterates that Article 2 of Protocol No. 1 requires the State
to respect the rights of parents to ensure education and teaching in
conformity with their own religious convictions and that Article 5 of
Protocol No. 7 establishes that spouses enjoy equality of rights in
their relations with their children. The Russian Religions Act does
not make religious education of children conditional on the existence
of an agreement between the parents. Both parents, even in a situation
where they adhere to differing doctrines or beliefs, have the same right
to raise their children in accordance with their religious or non-religious
convictions and any disagreements between them in relation to the necessity
and extent of the children's participation in religious practices and
education are private disputes that are to be resolved according to
the procedure established in domestic family law.
126. The
Russian courts also held that the applicant community had interfered
with the parental rights of non-Witness parents because Witness parents
had chosen to be represented by attorneys who had represented other
Jehovah's Witnesses. The Court points out that the right to defend one's
interests through legal assistance of one's own choosing implies the
possibility to choose from among qualified lawyers who would be best
prepared to represent the party in a given case. This right acquires
particular importance in a custody dispute where parental rights are
at stake. It is understandable that Witness parents have often chosen
to be represented by attorneys who have considerable relevant experience
in similar cases and are also knowledgeable about the teachings of Jehovah's
Witnesses. There is no evidence that those representatives have exercised
undue influence or exerted pressure on the courts hearing the custody
dispute, on the parties or on witnesses. Moreover, it was not found
that the attorneys at issue were employees of or counsel for the applicant
community. It is therefore unclear on what legal grounds the applicant
community could bear responsibility for their activity.
127. Finally,
the Court observes that the findings of the Golovinskiy District Court
that the rights of Jehovah's Witness children had been violated on the
ground that Biblical texts restrained their independent thinking, hindered
the development of patriotic feelings and made them social outcasts
had been made by reference to testimonies of prosecution experts and
relatives who had been openly hostile to the religion of Jehovah's Witnesses.
It does not appear, however, that the District Court took care to cross-examine
the children themselves, their teachers, social workers or other relatives.
In the absence of any first-hand evidence in support of these findings,
they cannot be said to have been based on an acceptable assessment of
the relevant facts.
(δ) Allegations of proselytising, “mind
control” and totalitarian discipline
128. The
Russian courts also held that the applicant community breached the right
of citizens to freedom of conscience by subjecting them to psychological
pressure, “mind control” techniques and totalitarian discipline.
129. Leaving
aside the fact that there is no generally accepted and scientific definition
of what constitutes “mind control” and that no definition of that
term was given in the domestic judgments, the Court finds it remarkable
that the courts did not cite the name of a single individual whose right
to freedom of conscience had allegedly been violated by means of those
techniques. Nor is it apparent that the prosecution experts had interviewed
anyone who had been coerced in that way into joining the community.
On the contrary, the individual applicants and other members of the
applicant community testified before the court that they had made a
voluntary and conscious choice of their religion and, having accepted
the faith of Jehovah's Witnesses, followed its doctrines of their own
free will.
130. Furthermore,
the petition of several thousand Jehovah's Witnesses to the District
Court, the President and the Prosecutor General contained the request
not to deny them their democratic rights and freedoms, including the
freedom of conscience (see paragraph 51 above). The District Court considered
that all the signatories to the petition had signed it as a result of
having been subjected to psychological pressure. However, it was unable
to refer to any evidence of such pressure or give an example of anyone
who had signed the petition against his or her will. Accordingly, the
findings of the Russian courts on this point were based on conjecture
uncorroborated by fact.
(iii) Encouragement of suicide or the refusal
of medical assistance
131. A
further ground for banning the applicant community was the charge that
it had encouraged its members to commit suicide and/or to refuse medical
assistance in life-threatening situations.
132. The
Court observes at the outset that the Russian courts did not elaborate
on the allegations of encouragement of suicide or give examples of such
incitement in the doctrine or practices of the applicant community or
name any community member who had terminated his or her life or sought
to do so. In so far as the domestic judgments can be understood to consider
that the refusal of a blood transfusion is tantamount to suicide, in
the Court's view, this analogy does not hold, for the situation of a
patient seeking a hastening of death through discontinuation of treatment
is different from that of patients who – like Jehovah's Witnesses
– just make a choice of medical procedures but still wish to get well
and do not exclude treatment altogether. As the charge of encouragement
to suicide did not have any basis in fact, the Court's task will be
confined to reviewing the second allegation, namely, that, at the instigation
of the community, its members declined medical assistance by refusing
the transfusion of blood or its components.
133. It
is generally known that Jehovah's Witnesses believe that the Bible prohibits
ingesting blood, which is sacred to God, and that this prohibition extends
to transfusion of any blood or blood components that are not the patient's
own. The religious prohibition permits of no exceptions and is applicable
even in cases where a blood transfusion is deemed to be necessary in
the best clinical judgment to avoid irreparable damage to the patient's
health or even to save his or her life. Some Jehovah's Witnesses, including
members of the applicant community, carry an advance medical directive
– known in Russia as a “No Blood” card (see paragraph 68 above)
– stating that they refuse blood transfusions under any circumstances
as a matter of religious belief. A few members of the applicant community
who had been admitted to hospitals had firmly refused a blood transfusion
against the advice of medical specialists who strongly recommended it.
These elements had been correctly established by the domestic courts
and were not contested by the applicants.
134. The
Court recognises that the refusal of potentially life-saving medical
treatment on religious grounds is a problem of considerable legal complexity,
involving as it does a conflict between the State's interest in protecting
the lives and health of its citizens and the individual's right to personal
autonomy in the sphere of physical integrity and religious beliefs (see, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § 62 et seq., ECHR
2002-III). The impugned provision of the Russian Religious Act was apparently
designed to protect individuals from religious influence which could
lead them to make choices that are considered irrational or unwise as
a matter of public policy, such as the decision to refuse medical treatment
that is generally regarded as beneficial. It was based on the assumption
that the State's power to protect people from the harmful consequences
of their chosen lifestyle ought to override the rights of believers
to respect for their private life and to freedom to manifest their religion
in practice and observance. That assumption made it unnecessary for
the Russian courts to carry out a balancing exercise which would have
allowed them to weigh considerations of public health and safety against
the countervailing principle of personal autonomy and religious freedom
(compare Pretty, cited above, § 74). Accordingly, it falls to the Court
to verify whether or not the balance has been upset.
135. The
very essence of the Convention is respect for human dignity and human
freedom and the notions of self-determination and personal autonomy
are important principles underlying the interpretation of its guarantees
(see Pretty, cited above, §§ 61 and 65). The ability to conduct
one's life in a manner of one's own choosing includes the opportunity
to pursue activities perceived to be of a physically harmful or dangerous
nature for the individual concerned. In the sphere of medical assistance,
even where the refusal to accept a particular treatment might lead to
a fatal outcome, the imposition of medical treatment without the consent
of a mentally competent adult patient would interfere with his or her
right to physical integrity and impinge on the rights protected under
Article 8 of the Convention (see Pretty, cited above, §§ 62 and 63, and Acmanne and Others v. Belgium, no. 10435/83, Commission decision
of 10 December 1984).
136. The
freedom to accept or refuse specific medical treatment, or to select
an alternative form of treatment, is vital to the principles of self-determination
and personal autonomy. A competent adult patient is free to decide,
for instance, whether or not to undergo surgery or treatment or, by
the same token, to have a blood transfusion. However, for this freedom
to be meaningful, patients must have the right to make choices that
accord with their own views and values, regardless of how irrational,
unwise or imprudent such choices may appear to others. Many established
jurisdictions have examined the cases of Jehovah's Witnesses who had
refused a blood transfusion and found that, although the public interest
in preserving the life or health of a patient was undoubtedly legitimate
and very strong, it had to yield to the patient's stronger interest
in directing the course of his or her own life (see the judgments cited
in paragraphs 85 to 88 above). It was emphasised that free choice and
self-determination were themselves fundamental constituents of life
and that, absent any indication of the need to protect third parties
– for example, mandatory vaccination during an epidemic, the State
must abstain from interfering with the individual freedom of choice
in the sphere of health care, for such interference can only lessen
and not enhance the value of life (see the Malette v. Shulman and Fosmire v. Nicoleau judgments, cited in paragraphs 85 and 87
above).
137. This
position is echoed in the Russian law which safeguards the patients'
freedom of choice. The Fundamentals of Russian Legislation on Health
Protection explicitly provide for the patient's right to refuse medical
treatment or to request its discontinuation on condition that they have
received full and accessible information about the possible consequences
of that decision. Patients are not required to give reasons for the
refusal. The refusal may only be overridden in three specific situations:
prevention of spreading of contagious diseases, treatment of grave mental
disorders and mandatory treatment of offenders (see paragraphs 81 and
83 above). Additionally, the parents' decision to refuse treatment of
a child may be reversed by means of judicial intervention (see paragraph
82 above). It follows that Russian law protects the individual's freedom
of choice in respect to their health care decisions as long as the patient
is a competent adult and there is no danger to innocent third parties.
These provisions had been repeatedly invoked by the applicants in the
first-instance and appeal proceedings but were not mentioned or analysed
in the domestic judgments. The Court notes, however, that they were
prima facie applicable in the instant case because all the refusals
of blood transfusions which had been described in the domestic judgments
had been formulated by adult Jehovah's Witnesses having capacity to
make medical decisions for themselves. In the only case involving a
minor, the hospital did not apply for judicial authorisation of a blood
transfusion, although such a possibility was explicitly provided for
in law (see paragraph 82 above), which indicates that authorisation
was considered unnecessary for medical or other reasons.
138. Furthermore,
even though the Jehovah's Witnesses whose opposition to blood transfusions
was cited in evidence were adults having legal capacity to refuse that
form of treatment, the findings of the Russian courts can be understood
to mean that their refusals had not been an expression of their true
will but rather the product of pressure exerted on them by the applicant
community. The Court accepts that, given that health and possibly life
itself are at stake in such situations, the authenticity of the patient's
refusal of medical treatment is a legitimate concern. In the landmark
case In re T. (Adult: Refusal of Treatment), Donaldson L.J., on
the Court of Appeal of England and Wales, indicated that the refusal
may have been vitiated because it resulted not from the patient's will,
but from the will of others. If the patient's will was overborne, the
refusal will not have represented a true decision (see the judgment,
§ 5, paragraph 86 above). Staughton L.J. added that “for an apparent
refusal or consent to be less than a true consent or refusal, there
must be such a degree of external influence as to persuade the patient
to depart from her own wishes, to an extent that the law regards it
as undue”.
139. The
Court reiterates that, although the arguments based on religious beliefs
may be extremely persuasive and compelling, the right “to try to convince
one's neighbour” is an essential element of religious freedom (see Kokkinakis, cited above, § 31, and Larissis and Others v. Greece, 24 February 1998, § 45, Reports of Judgments and Decisions 1998-I). In the Larissis case the Court drew a distinction between the position
of servicemen who found it difficult to withdraw from religious conversations
initiated by the applicants, who had been their superiors, and that
of civilians who were not subject to pressures and constraints of the
same kind as military personnel. The former could be viewed as a form
of harassment or the application of improper pressure, whereas the latter
would be seen as an innocuous exchange of ideas (see Larissis, §§ 51, 54, and 59). Turning to the instant case,
the Court finds nothing in the domestic judgments to suggest that any
form of improper pressure or undue influence was applied. On the contrary,
it appears that many Jehovah's Witnesses have made a deliberate choice
to refuse blood transfusions in advance, free from time constraints
of an emergency situation, which is borne out by the fact that they
had prepared for emergencies by filling out “No Blood” cards and
carrying them in their purses. There is no evidence that they wavered
in their refusal of a blood transfusion upon admission to hospital.
Accordingly, there is no factual basis supporting the finding that their
will was overborne or that the refusal of a blood transfer did not represent
their true decision.
140. The
District Court's finding that the “No Blood” card permitted the
patient's fellow believers to take medical decisions in his or her stead
was also at variance with the actual contents of the card (as reproduced
in paragraph 68 above). Designed as an advance medical directive, the
card merely certified the choice that the patient had already made for
himself or herself, namely, to refuse any transfusion of blood or its
components. It did not delegate the right to make any other medical
decision to anyone else, but designated the patient's legal representative
who could ensure, in case of the patient's unconsciousness or inability
to communicate, that his or her choice of medical treatment be known
to, and respected by, the medical personnel. Representation of the patient
in medical matters was provided for in Article 33 of the Fundamentals
on Health Protection (see paragraph 81 above). The identity of the representative
was of no legal significance, as the law did not vest any special rights
in the next-of-kin. The patient was free to choose as his representative
another fellow believer or a member of the Hospital Liaison Committee
in the applicant community who would have the added benefit of detailed
knowledge of the Jehovah's Witnesses doctrine on the issue of blood
transfusion and could advise the medical personnel on compatibility
of the contemplated procedure with the patient's religious beliefs.
141. Finally,
the Court observes that the impugned provision of the Religions Act,
as interpreted by the domestic courts, did not require proof of actual
damage to life or limb. The fact that the applicant community had preached
the doctrinal importance of abstaining from blood transfusions in its
religious literature and distributed blank “No Blood” cards among
its members was in itself sufficient to trigger the banning of its activities.
This finding had the effect of making the part of the Jehovah's Witnesses
teachings concerning the refusal of medical treatment unlawful and amounted
to a declaration that their religious beliefs relating to the sacred
nature of blood were illegitimate. However, the Court reiterates that
the State does not have the right under the Convention to decide what
beliefs may or may not be taught because the right to freedom of religion
as guaranteed under the Convention excludes any discretion on the part
of the State to determine whether religious beliefs or the means used
to express such beliefs are legitimate (see Manoussakis and Others, cited above, § 47).
142. In
the light of the above considerations, the Court finds that the domestic
courts did not convincingly show any “pressing social need” or the
existence of “relevant and sufficient reasons” capable of justifying
a restriction on the applicants' right to personal autonomy in the sphere
of religious beliefs and physical integrity.
(iv) Damage to citizens' health
143. The
Russian courts decided that participation in the activities of the applicant
community had been damaging for the health of its followers because
they had refused blood transfusions and also experienced strong emotions
and personality changes.
144. The
Court observes, on a general note, that the rites and rituals of many
religions may harm believers' well-being, such as, for example, the
practice of fasting, which is particularly long and strict in Orthodox
Christianity, or circumcision practised on Jewish or Muslim male babies.
It does not appear that the teachings of Jehovah's Witnesses include
any such contentious practices. What is more important, by contrast
with the provision that penalised the mere act of encouraging the refusal
of medical assistance, the accusation of causing damage to the health
of citizens required proof of actual harm to health as defined by law.
However, the domestic judgments did not identify any member of the applicant
community whose health had been harmed or cite any forensic study assessing
the extent of the harm and establishing a causal link between that harm
and the activities of the applicant community. The medical outcomes
in the reported cases of refusals of blood transfusions were not specified
and those reports were not accompanied by medical studies capable of
demonstrating that a blood transfusion would have actually benefited
the patient. Furthermore, as the Court has found above, the refusal
of blood transfusion was an expression of the free will of the individual
community members who exercised their right to personal autonomy in
the sphere of health care protected both under the Convention and in
Russian law.
145. The
testimony by non-Witness family members about “sudden and negative
changes of personality” of their Witness relatives reflected their
subjective assessment of the situation, strongly coloured by their frustration
and estrangement from relatives. In general, personality changes are
part and parcel of human development and are not in themselves indicative
of any medical problems. Moreover, it is commonly known that religious
experiences are a powerful source of emotions and crying may come from
the joy of being united with the divine. It has not been shown in the
domestic proceedings, to any acceptable standard of proof, that the
emotional exhaustion or tears experienced by members of the applicant
community had any appreciable negative effect on their well-being or
mental state.
146. Accordingly,
the Court finds that the charge of causing damage to the health of citizens
lacked a factual basis.
(v) Luring minors into the organisation
147. The
applicant community was also accused of luring minors into the organisation,
which was understood by the domestic courts as the involvement of minors
in the religious activities despite the objections of the parent who
was not a Jehovah's Witness.
148. The
Court has already examined this claim above in minute detail and found
that it was not substantiated by evidence (see paragraphs 124 et seq.
above). In particular, the Court was unable to find any indication that
minors had been “lured” against their will, by deception, trickery
or any other inappropriate means.
(vi) Incitement of citizens to refuse civic
duties
149. The
Russian courts found that the literature distributed by the applicant
community incited citizens to refuse military and alternative civilian
service, promoted a “disrespectful attitude” to the State flag and
anthem, and also prohibited them from celebrating State holidays.
150. It
is a well-known fact that Jehovah's Witnesses are a religious group
committed to pacifism and that their doctrine prevents individual members
from performing military service, wearing uniform or taking up weapons
(see, for example, Thlimmenos v. Greece [GC], no. 34369/97, § 42, ECHR 2000-IV).
On the other hand, Jehovah's Witnesses agree to carry out alternative
civilian service on the condition it is not connected with military
organisations (see Faizov v. Russia (dec.), no. 19820/04, 15 January 2009). The
Russian Constitution (Article 59 § 3) and the Russian Religions Act
(section 3 § 4) explicitly acknowledge the right of Russian nationals
to conscientious objection to military service, in which case it has
to be substituted with alternative civilian service. The right to alternative
civilian service has been consistently upheld by the Russian courts,
including in cases where it was exercised by a Jehovah's Witness (see Faizov, cited above). Thus, the religious admonishment to refuse
military service was in full compliance with Russian laws and no instances
of any applicant community's members unlawfully refusing alternative
civilian service were put forward in the community trial.
151. The
courts did not cite any domestic legal provision that would require
Jehovah's Witnesses to pay respect to State symbols. Neither the State
Anthem Act, nor the State Flag Act, nor the State Emblem Act of the
Russian Federation contain regulations on the civil duty of honouring
such symbols. The Russian Criminal Code penalises the act of desecrating
the State flag or the State emblem, which may happen by way of, for
example, ripping or soiling them or making marks on them that distort
the meaning of the State symbols (Article 329). However, not one conviction
of the offence of desecration or specific instance of “disrespectful
attitude” on the part of anyone from the applicant community was cited
by the Russian courts in the dissolution proceedings.
152. Finally,
“participation in celebrations during State holidays” is not a civil
duty as defined by law. In fact, there is no law compelling celebration
of any holidays, whether they are secular or religious, and such compulsory
participation in celebrations, had it been elevated to the rank of a
legal obligation, could arguably have raised an issue under Articles
9 and 10 of the Convention (compare Efstratiou and Valsamis v. Greece, 18 December 1996, § 32, Reports 1996-VI, concerning the participation of Jehovah's Witness
children in a school parade).
153. In
the light of the above considerations, the Court finds that it has not
been persuasively shown that the applicant community or its individual
members incited, or were incited, to refuse to carry out any lawfully
established civil duties.
(d) Severity of the sanction
154. Finally,
the Court will review the domestic decisions dissolving the applicant
community and banning its activities from the standpoint of the gravity
of the sanction applied by the Russian courts. It reiterates that the
nature and severity of the sanction are factors to be taken into account
when assessing the proportionality of the interference (see Refah Partisi, cited above, § 133).
155. The
Court observes at the outset that a blanket ban on the activities of
a religious community belonging to a known Christian denomination is
an extraordinary occurrence. Since their inception in the late nineteenth
century Jehovah's Witnesses have established an active presence in many
countries world-wide, including all European States which are currently
members of the Council of Europe. In those countries they have been
allowed to practise their religion in community with others, although
they may have experienced delays and difficulties in obtaining formal
recognition (see, for example, Tsirlis and Kouloumpas v. Greece, 29 May 1997, § 44, Reports 1997-III, and Religionsgemeinschaft der Zeugen Jehovas and Others, cited
above).
156. Following
the demise of the USSR and Russia's transition to democracy, Jehovah's
Witnesses were able to practise lawfully their religion and register
religious organisations at federal and regional level (see paragraph
12 above). Their religious organisation registered at federal level
has been in existence since 1992 and was approved for re-registration
by the Ministry of Justice in 1999, following a detailed expert study.
Almost four hundred regional organisations of Jehovah's Witnesses have
been created and subsequently re-registered in other Russian regions
(see paragraph 163 below). Even though some of those organisations have
had to defend themselves against charges similar to those levelled in
the proceedings against the applicant community before the Moscow courts
(see, for example, the judgment of the Tatarstan Supreme Court relating
to the refusal of a blood transfusion, cited in paragraph 84 above,
or the failed criminal charge of “luring minors into the cult”,
described in Kuznetsov and Others v. Russia, no. 184/02, §§ 10-13, 11
January 2007), none of them has been dissolved or restricted in their
religious activities.
157. The
Court has already had occasion to examine the particular situation obtaining
in Moscow in the period following the enactment of the 1997 Religions
Act where the authorities have consistently denied re-registration to
religious organisations which were described as “non-traditional religions”,
including The Salvation Army and the Church of Scientology. The Court
found in both cases that “the Moscow authorities did not act in good
faith and neglected their duty of neutrality and impartiality” (see Church of Scientology Moscow v. Russia, no. 18147/02, § 97,
5 April 2007, and Moscow Branch of the Salvation Army v. Russia, no. 72881/01,
§ 97, ECHR 2006-XI). This differential treatment, for which Jehovah's
Witnesses also appear to have been singled out, has remained a matter
of concern for the Parliamentary Assembly of the Council of Europe (see
paragraphs 101-102 of the Report on the honouring of obligations and
commitments by the Russian Federation, cited in paragraph 89 above,
and Resolution 1278 on Russia's law on religion, cited in Church of Scientology Moscow, § 63).
158. Before
the decision dissolving it was made, the applicant community of Jehovah's
Witnesses had existed and legally operated in Moscow for more than twelve
years, from 1992 to 2004. During the entire period of its lawful existence
the applicant community, its elders and individual members had never
been found responsible for any criminal or administrative offence or
a civil wrong; no such evidence was produced in the domestic dissolution
proceedings or before the Court. A number of criminal investigations
into the activities of the applicant community undertaken on the basis
of complaints by the Salvation Committee did not produce evidence of
any criminal offence either (see paragraphs 16-22 above).
159. Under
section 14 of the Religions Act, forced dissolution and a ban on activities
is the only sanction which courts can apply to religious organisations
found to have breached the requirements of the Religions Act. The Act
does not provide for the possibility of issuing a warning or imposing
a fine. Accordingly, the sanction of dissolution is to be applied indiscriminately
without regard to the gravity of the breach in question. The judgments
of the Russian courts put an end to the existence of a religious community
made up of approximately 10,000 believers and imposed an indefinite
ban on its activities unlimited in time or scope. This was obviously
the most severe form of interference, affecting, as it did, the rights
of thousands of Moscow Jehovah's Witnesses who were, as a consequence,
denied the possibility of joining with fellow believers in prayer and
observance. Therefore, even if the Court were to accept that there were
compelling reasons for the interference, it finds that the permanent
dissolution of the applicant community, coupled with a ban on its activities,
constituted a drastic measure disproportionate to the legitimate aim
pursued. Greater flexibility in choosing a more proportionate sanction
could be achieved by introducing into the domestic law less radical
alternative sanctions, such as a warning, a fine or withdrawal of tax
benefits (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no.
37083/03, § 82, ECHR 2009-...).
(e) Overall conclusion
160. The
Court finds that the interference with the applicants' right to freedom
of religion and association was not justified. The domestic courts did
not adduce “relevant and sufficient” reasons to show that the applicant
community forced families to break up, that it infringed the rights
and freedoms of its members or third parties, that it incited its followers
to commit suicide or refuse medical care, that it impinged on the rights
of non-Witness parents or their children, or that it encouraged members
to refuse to fulfil any duties established by law. The sanction pronounced
by the domestic courts was excessively severe in view of the lack of
flexibility in the domestic law and disproportionate to whatever legitimate
aim was pursued. There has accordingly been a violation of Article 9
of the Convention, read in the light of Article 11.
II. ALLEGED VIOLATION OF ARTICLES
9 AND 11 OF THE CONVENTION ON ACCOUNT OF REFUSAL TO RE-REGISTER THE
APPLICANT COMMUNITY
161. The
applicants complained that the unjustified refusal of Russian authorities
to grant the applicant community re-registration as a religious organisation
violated their rights under Articles 9 and 11 of the Convention. The
Court reiterates that complaints about the refusal of registration fall
to be examined from the standpoint of Article 11 of the Convention read
in the light of Article 9 (see The Moscow Branch of the Salvation Army, cited above, §§ 74
and 75, with further references). As the religious nature of the applicant
community was not disputed at the national level and it had been officially
recognised as a regional religious organisation, the Court considers
that this approach must be followed in the instant case.
A. Submissions by the parties
1. The applicants
162. The
applicants submitted that the denial of re-registration amounted to
an interference with their rights to freedom of religion and association.
As a matter of domestic law, it had the effect of depriving the applicant
community of the right to seek the exemption of clergy from military
service, the right to establish educational institutions, to invite
foreign preachers, to manufacture, purchase, import and distribute religious
literature, and many other rights. Moreover, the denial of re-registration
curtailed the right to amend the applicant community's own articles
of association, including their bank details and the list of authorised
signatories. The entering of the applicant community on the Unified
State Register of Legal Entities had been made in accordance with internal
administrative reforms and did not constitute re-registration for the
purposes of the Religions Act.
163. The
applicants claimed that the interference had not been prescribed by
law or necessary in a democratic society. It had been established by
the Presnenskiy District Court on 16 August 2002 that the Moscow Justice
Department had not invoked the dissolution proceedings before the Golovinskiy
District Court as a ground for refusing re-registration. Furthermore,
the four criminal investigations between June 1996 and April 1998 had
found no criminal activity on the part of the applicant community. In
April 1999, after a detailed expert study, the Ministry of Justice had
granted re-registration to the federal organisation of Jehovah's Witnesses,
of which the applicant community had been a member. Likewise, 398 communities
of Jehovah's Witnesses in other Russian regions had been granted registration
or re-registration during the same period.
164. The
applicants alleged that the Russian authorities had acted in bad faith
in that they had resorted to repeated denials of re-registration, persistent
delays and technical obstruction, even though there was no evidence
that the applicant community had posed any threat to the State or public
order.
2. The Government
165. The
Government considered that there was no interference with the applicants'
right to freedom of association because the applicant community had
not been liquidated and retained the full capacity of a legal entity.
On 9 September 2002 it had been entered on the Unified State Register
of Legal Entities and continued its religious activities.
166. The
Government further submitted that there was no violation of the applicants'
right to freedom of religion or any restriction on that right. The penalty
imposed on the applicant community “was not harsh and was not motivated
by religious factors, but by a failure to observe the law and a violation
of the administrative procedure”. Members of the applicant community
continued to profess their faith, hold services of worship and ceremonies,
and guide their followers. Thus, from 5 to 7 July 2002 the applicant
community had held a regional congress of Jehovah's Witnesses which
had been attended by up to 24,000 believers.
167. Finally,
the Government claimed that the applicant community was not precluded
from lodging a new application for re-registration.
B. Admissibility
168. The
Court has already found in a similar case concerning a denial of re-registration
under the Russian Religions Act that, as long as the applicant community
has retained legal capacity to lodge an application with this Court,
individual applicants could not themselves claim to be victims of a
violation resulting from the domestic authorities' refusal of re-registration,
which affected only the applicant community as such (see Church of Scientology Moscow and Others v. Russia (dec.), no. 18147/02,
28 October 2004, and also The
Holy Monasteries v. Greece, nos. 13092/87 and 13984/88,
Commission decision of 5 June 1990). It follows that, in so far as this
complaint was introduced by the individual applicants, it is incompatible ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance with
Article 35 § 4.
169. The
Court further considers that the complaint by the applicant community
is not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
C. Merits
170. In
the light of the general principles outlined above, 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. The Court has expressed
the view that a refusal by the domestic authorities to grant legal-entity
status to an association of individuals may amount to an interference
with the applicants' exercise of their right to freedom of association
(see Gorzelik, cited above, § 52 et passim, and Sidiropoulos, cited above, § 31 et passim). Where the organisation of the religious community
is at issue, a refusal to recognise it also constitutes an interference
with the applicants' right to freedom of religion under Article 9 of
the Convention (see Metropolitan Church of Bessarabia, cited above, § 105). The
believers' right to freedom of religion encompasses the expectation
that the community will be allowed to function peacefully, free from
arbitrary State intervention (see Hasan and Chaush v. Bulgaria, cited above, § 62).
171. The
Court observes that the applicant community had lawfully existed and
operated in Russia since 1992. In 1997 the respondent State enacted
a new Religions Act which required all religious organisations that
had been previously granted legal-entity status to amend their founding
documents in conformity with the new Act and to have them “re-registered”
within a specific time-period. Several applications for re-registration
filed by the applicant community before the established time-limit were
rejected, which had the effect of barring the possibility of filing
further applications for re-registration.
172. The
Court has already found in two similar cases that, contrary to the Government's
submission, the entering of information concerning the religious association
into the Unified State Register of Legal Entities did not constitute
“re-registration” required under the Religious Act, as it was solely
linked to the establishment of that register and to the transfer of
registration competence from one authority to another following enactment
of a new procedure for registration of legal entities (see The Moscow Branch of The Salvation Army, § 67, and Church of Scientology Moscow, § 78, both cited above). Furthermore,
the Court found in those same cases that the refusal of re-registration
disclosed an interference with the religious organisation's right to
freedom of association and also with its right to freedom of religion
in so far as the Religions Act restricted the ability of a religious
association without legal-entity status to exercise the full range of
religious activities and also to introduce amendments to its own articles
of association (see The Moscow Branch of The Salvation Army, § 74, and Church of Scientology Moscow, § 83, both cited above). These
findings are applicable in the present case as well.
173. Accordingly,
the Court considers that there has been an interference with the applicant
community's rights under Article 11 of the Convention read in the light
of Article 9 of the Convention. It must therefore determine whether
the interference satisfied the requirements of paragraph 2 of those
provisions, that is, whether it was “prescribed by law”, pursued
one or more legitimate aims and was “necessary in a democratic society”
(see, among many authorities, Metropolitan Church of Bessarabia, cited above, § 106).
174. The
Court observes that the grounds for refusing re-registration of the
applicant community were not consistent throughout the period during
which it attempted to secure re-registration. The first, second and
third applications were not processed for an alleged failure to submit
a complete set of documents (see paragraphs 37, 38 and 40 above), and
subsequently the applicant community was requested to submit the original
charter and registration certificate. However, the Presnenskiy District
Court found that there had been no legal basis for such request (see
paragraph 48 above). The fourth application was rejected because of
textual discrepancies between the charter and the Religions Act (see
paragraph 41 above). The fifth and final application was rejected with
reference to the proceedings for dissolution of the applicant community
pending before the Golovinskiy District Court (see paragraph 43 above).
This ground was endorsed by the Buryrskiy District and Moscow City Courts
(see paragraphs 47 and 49 above). Finally, the Presnenskiy District
and Moscow City Courts dismissed the complaint brought by the second
applicant, Mr Chaykovskiy, on the basis of a new ground, namely, the
introduction of new registration forms in 2002 (see paragraphs 48 and
49 above).
175. As
regards the applicant community's alleged failure to submit a complete
set of documents, the Court notes that the Moscow Justice Department
consistently omitted to specify why it deemed the applications incomplete
(see paragraphs 37, 38 and 40 above). Responding to a written inquiry
by the applicant community, the deputy head of the Department claimed
that it was under no legal obligation to list the missing documents
(see paragraph 40 above). The Court has already found, in a similar
case involving the Moscow Justice Department, that not only did such
an approach deprive the applicant of an opportunity to remedy the supposed
defects of the applications and re-submit them, but it also ran counter
to the express requirement of the domestic law that any refusal must
be reasoned (see Church of Scientology Moscow, cited above, § 91). By not stating
clear reasons for rejecting the applications for re-registration submitted
by the applicant community, the Moscow Justice Department acted in an
arbitrary manner. Consequently, the Court considers that that ground
for refusal was not “in accordance with the law”.
176. The
request by the Moscow Justice Department for the original charter and
registration certificate was found – already in the domestic proceedings
– to lack a legal basis (see paragraph 48 above). Moreover, this Court
has already found in a similar case that the requirement to submit the
original documents did not flow from the text of the Religions Act or
any other regulatory documents and that it was also excessively burdensome
on the applicant as it could have the effect of making the resubmission
of rectified applications for re-registration impossible (see Church of Scientology Moscow, cited above, § 92).
177. The
Court does not consider it necessary to examine the alleged discrepancies
between the charter of the applicant community and the text of the Religions
Act because the fifth and final application for re-registration were
submitted in corrected form and because these discrepancies were not
endorsed as independent grounds for refusal in the domestic judicial
proceedings.
178. It
is likewise unnecessary to consider the issue whether the reference
to on-going dissolution proceedings could have been a valid ground justifying
the refusal of re-registration because, as the Court has found above,
the charges levelled against the applicant community were not based
on a solid evidentiary basis and could not be held to constitute “relevant
and sufficient” reasons for the interference.
179. Finally,
as regards the domestic courts' finding that the applicant community
had to resubmit its application for re-registration using new forms
introduced in 2002, the Court notes that the Religions Act did not make
re-registration conditional on the use of specific forms. In any event,
neither the domestic authorities, nor the Government in their observations,
were able to specify by operation of which legal provisions the applicant
community could still resubmit an application for re-registration after
such application had obviously become belated following the expiry of
the extended time-limit on 31 December 2000 (compare Church of Scientology Moscow, cited above, § 79).
180. It
follows that the grounds invoked by the domestic authorities for refusing
re-registration of the applicant community had no lawful basis. A further
consideration relevant for the Court's assessment of the justification
for the interference is that by the time the re-registration requirement
was introduced, the applicant had lawfully existed and operated in Moscow
as an independent religious community for many years. At the relevant
time there existed no judicial or administrative decision by which the
applicant community as a whole or its individual members had been found
to have breached any domestic law or regulation governing associative
life and religious activities. In these circumstances, the Court considers
that the reasons for refusing re-registration should have been particularly
weighty and compelling (see Church of Scientology Moscow, and The Moscow Branch of The Salvation Army, both cited above,
§ 96). In the present case no such reasons have been put forward by
the domestic authorities.
181. In
view of the finding above that the reasons invoked by the Moscow Justice
Department and endorsed by the Moscow courts for refusing re-registration
of the applicant community had no legal basis, the Court concludes,
as it has already done in two similar cases, that, in denying re-registration
to the Jehovah's Witnesses of Moscow, the Moscow authorities did not
act in good faith and neglected their duty of neutrality and impartiality
vis-à-vis the applicant community (see
Church of Scientology Moscow,
and
The Moscow Branch of The Salvation Army, both cited above,
§ 97).
182. In
the light of the foregoing, the Court considers that the interference
with the applicant community's right to freedom of religion and association
was not justified. There has therefore been a violation of Article 11
of the Convention read in the light of Article 9 on account of the refusal
of re-registration of the applicant community.
III. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLES 9, 10 AND 11
183. The
applicants further complained under Article 14 of the Convention, read
in conjunction with Articles 9, 10 and 11, that they had been discriminated
against on account of their position as a religious minority in Russia.
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status.”
A. Submissions by the parties
1. The applicants
184. The
applicants submitted that the prosecution of the applicant community
and the dissolution proceedings had been solely based on a discriminatory
attack on the religious beliefs of Jehovah's Witnesses. The domestic
courts had consistently refused to carry out a comparative analysis
of publications of other religious organisations, in particular, the
Russian Orthodox Church.
2. The Government
185. The
Government denied that the refusal or re-registration or the dissolution
of the applicant community and banning of its activities had discriminated
against the applicant community or the individual applicants. They pointed
out that there was no evidence of any prosecution of community members.
B. Admissibility
186. The
Court considers that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention or inadmissible on
any other ground. It must therefore be declared admissible.
C. Merits
187. It
is reiterated that Article 14 has no independent existence, but plays
an important role by complementing the other provisions of the Convention
and the Protocols, since it protects individuals placed in similar situations
from any discrimination in the enjoyment of the rights set forth in
those other provisions. Where a substantive Article of the Convention
or its Protocols has been invoked both on its own and together with
Article 14 and a separate breach has been found of the substantive Article,
it is not generally necessary for the Court to consider the case under
Article 14 also, though the position is otherwise if a clear inequality
of treatment in the enjoyment of the right in question is a fundamental
aspect of the case (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95
and 28443/95, § 89, ECHR 1999-III, and Dudgeon v. the United Kingdom, judgment of 22 October 1981,
Series A no. 45, § 67).
188. In
the circumstances of the present case the Court considers that the inequality
of treatment of which the applicants claimed to be victims has been
sufficiently taken into account in the above assessment leading 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 Article 14 of the Convention (see Metropolitan Church of Bessarabia, § 134, and Sidiropoulos, § 52, both cited above).
IV. ALLEGED VIOLATION OF ARTICLE
6 OF THE CONVENTION ON ACCOUNT OF THE ALLEGEDLY EXCESSIVE LENGTH OF
THE DISSOLUTION PROCEEDINGS
189. The
applicants complained of a violation of Article 6 § 1 of the Convention
on account of the excessive length of the proceedings concerning the
dissolution of the applicant community. The relevant part of Article
6 § 1 read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal ...”
A. Submissions by the parties
1. The applicants
190. The
applicants claimed that the proceedings in the case had been unreasonably
long. They submitted a detailed breakdown of delays attributable to
various actors in the proceedings, from which it appeared that a major
delay of three years and forty-one days had been due to expert studies,
a further delay of two years, one month and twenty-five days had been
caused by the courts, and five months and three days by the prosecutors.
The applicants accepted that they had been responsible for a two-month
delay in the proceedings.
2. The Government
191. The
Government submitted that the length of proceedings in the case was
accounted for by its complexity and also by the fact that three composite
forensic studies involving specialists in religious studies, linguistics
and psychology had been ordered. Moreover, the proceedings had been
postponed more than once at the request of the applicant community.
B. Admissibility
192. The
Court observes that only the applicant community, and not the individual
applicants, was party to the civil proceedings. It follows that, in
so far as this complaint was introduced by the individual applicants,
it is incompatible ratione personae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in accordance with
Article 35 § 4.
193. The
Court further reiterates that Article 6, under its civil limb, is applicable
to proceedings concerning the legal existence of an association (see Religionsgemeinschaft der Zeugen Jehovas, §§ 106-08, and APEH Üldözötteinek Szövetsége and Others, §§ 30-36,
both cited above). As this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention or inadmissible on
any other grounds, it must therefore be declared admissible.
C. Merits
1. The period under consideration
194.
The Court observes that the prosecutor introduced an application for
dissolution of the applicant community on 20 April 1998
.
However, the period to be taken into consideration for the purposes
of the present case began only on 5 May 1998, when the Convention entered
into force in respect of Russia. The period in question ended on 16
June 2004 with the final decision of the City
Court. It lasted, accordingly, a total of six years and almost two months
at two levels of jurisdiction, of which six years, one month and thirteen
days fall within the Court's jurisdiction.
2. Reasonableness of the length of proceedings
195. The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and with
reference to the following criteria: the complexity of the case, the
conduct of the applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII).
196. The
Court observes that the proceedings concerned the dissolution of a religious
community and the banning of its activities. The issues involved were
admittedly complex. However, the complexity of the case alone cannot
explain the overall duration of the proceedings, which was over six
years at two levels of jurisdiction.
197. In
so far as the conduct of the applicant community is concerned, the Court
notes that several hearings were adjourned at the applicant community's
request, which caused an aggregate delay of approximately six months.
198. As
to the conduct of the authorities, the Court finds that the overall
period, less the period attributable to the applicant community's conduct,
leaves the authorities accountable for approximately five and a half
years. Certain delays in that period were attributable to the courts,
for instance, a four-month delay between the quashing of the first judgment
by the Moscow City Court on 30 May 2001 and the opening of a new trial
on 25 September 2001 or a three-month adjournment of the trial between
13 February and 14 May 2003. However, the majority of the delays were
caused by the proceedings being stayed pending the completion of expert
studies, of which the first study took more than twenty months (from
March 1999 to December 2000) to be completed. In total, the experts'
delays amounted to more than three years. The Court is not called upon
to determine the reasons for the delay in preparation of the expert
reports because, as it has found on many occasions, Article 6 § 1 of
the Convention imposes on Contracting States the duty to organise their
judicial system in such a way that their courts can meet the obligation
to decide cases within a reasonable time and because the responsibility
for a delay caused by expert examinations ultimately rests with the
State (see Rolgezer and Others v. Russia, no. 9941/03, § 30, 29 April 2008; Salamatina v. Russia, no. 38015/03, § 28, 1 March 2007; Kesyan v. Russia, no. 36496/02, § 57, 19 October 2006; and Capuano v. Italy, 25 June 1987, § 32, Series A no. 119). It
follows that the authorities were responsible for a significant part
of the delays in the proceedings.
199. Having
examined all the material submitted to it, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement. There has accordingly
been a breach of Article 6 § 1 on that account.
V. OTHER ALLEGED VIOLATIONS OF THE
CONVENTION
200. Lastly,
the applicants complained under Article 4 of Protocol No. 7 that the
proceedings for dissolution of the applicant community represented a
retrial for the offences of which they had been finally acquitted following
the criminal investigation in 1998. They also complained, under Article
6 § 1, that at the appeal hearing on 30 May 2001, one member of the
bench had held a subjective bias against Jehovah's Witnesses, that the
appeal court had acted in excess of its jurisdiction and that the protracted
prosecution of Jehovah's Witnesses amounted to an abuse of prosecutorial
discretion.
201. The
Court notes that the proceedings for dissolution of the applicant community
were civil in nature. Accordingly, Article 4 of Protocol No. 7 finds
no application and this complaint is incompatible ratione materiae with the provisions of the Convention and
must be rejected in accordance with Article 35 § 4. Furthermore, following
the appeal judgment of 30 May 2001, the case was examined de novo by courts at two levels of jurisdiction. The complaint
concerning the alleged defects of the appeal hearing is therefore manifestly
ill-founded and must also be rejected.
VI. APPLICATION OF ARTICLE 41 OF
THE CONVENTION
202. 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
203. The
applicants submitted that the main pecuniary damage resulting from the
dissolution proceedings had been the legal costs and disbursements,
which they would claim under a separate head below. As to the non-pecuniary
damage, they asked the Court to determine the exact amount of compensation.
They cited as reference amounts the awards of 20,000 euros (EUR) in
the case of Metropolitan Church of Bessarabia and Others (cited above,
concerning the refusal of registration of the applicant church), EUR
75,000 in the case of Sovtransavto Holding v. Ukraine (just satisfaction, no. 48553/99,
2 October 2003, concerning the anxiety caused by long litigation) and
EUR 200,000 in the case of Dicle for the Democratic Party (DEP) of Turkey v. Turkey (no.
25141/94, 10 December 2002, concerning frustration of members of the
unjustly dissolved political party).
204. The
Government submitted that they had already given examples showing that
Jehovah's Witnesses had been able to exercise their religious rights
and therefore a finding of a violation would constitute sufficient just
satisfaction.
205. The
Court considers that the refusal to allow the applicant community to
be re-registered and the protracted domestic proceedings which culminated
in its dissolution and the banning of its activities must undoubtedly
have caused non-pecuniary damage to the applicant community, as well
as feelings of distress, anxiety and injustice to the individual applicants,
and also handicapped their religious life and disrupted the possibility
of practicing the religion of Jehovah's Witnesses in community with
others. Making a global assessment on the non-pecuniary damage on an
equitable basis, the Court awards the applicants jointly EUR 20,000,
plus any tax that may be chargeable.
206. It
is further reiterated that, where the Court finds a violation, the respondent
State has a legal obligation under Article 46 of the Convention not
just to pay those concerned the sums awarded by way of just satisfaction
under Article 41, but also to select, subject to supervision by the
Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in their domestic legal order to put an end to
the violation found by the Court and to redress so far as possible the
effects. 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. In the
instant case the Court found a violation of Article 9 read in the light
of Article 11 on account of the dissolution of the applicant community
and the banning of its activities and also a violation of Article 11
read in the light of Article 9 on account of the refusal of re-registration
of the applicant community within the meaning of the 1997 Religions
Act. It is noted that, pursuant to the Russian Constitutional Court's
judgment no. 4-P of 26 February 2010, the Court's judgments are binding
on Russia and a finding of a violation of the Convention or its Protocols
by the Court is a ground for reopening civil proceedings under Article
392 of the Code of Civil Procedure and review of the domestic judgments
in the light of the Convention principles established by the Court.
The Court considers that such a review would be the most appropriate
means of remedying the violations it has identified in the judgment.
However, the respondent State remains free, subject to monitoring by
the Committee of Ministers, to choose any other additional means by
which it will discharge its legal obligation under
Article
46 of the Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment (see
Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98,
§ 249).
B. Costs and expenses
207. The
applicants explained that in the domestic dissolution proceedings they
had retained three experienced lawyers to defend the community of some
10,000 Moscow Jehovah's Witnesses against the claims of the Ministry
of Justice and Russian prosecutors. Mr J. Burns, a member of the Canadian
Bar, had been fully versed in the religious beliefs, practices and literature
of the applicants and had conducted many cases for Jehovah's Witnesses
in various jurisdictions world-wide. Mr A. Leontyev had acted as general
counsel for the Administrative Centre of Jehovah's Witnesses in Russia.
Ms G. Krylova, a senior member of the Moscow Bar, had been a leading
lawyer in Russia in matters of religious freedom. In addition, Mr R.
Daniel, a member of the English Bar, had been retained for the purposes
of preparing the application to the Court.
208. The
applicants pointed out that the domestic dissolution proceedings had
lasted for an exceptionally long period of time – 116 court days –
and that their defence had needed to secure the appearance of many experts
and witnesses and be properly represented. The total costs of the Russian
attorney, Mr Leontyev
,
at the hourly rate of EUR 40, travel expenses, printing and copying
costs at EUR 0.15 per page, and transcription expenses at EUR 3.50 per
page, amounted to EUR 65,519.75, according to the following break-down:
· EUR 800 for the defence in the criminal proceedings;
· EUR 19,329.45 for the first round of proceedings
before the Golovinskiy District Court (37 days; 1,952 pages of transcript);
· EUR 1,078.10 for the defence against the
prosecutor's appeal to the Moscow City Court;
· EUR 35,142.20 for the second round of proceedings
before the Golovinskiy District Court (66 days; 3,257 pages of transcript);
· EUR 1,070 for the appeal proceedings before
the Moscow City Court;
· EUR 8,100 for the application to the Court.
209. In
addition, counsel's fees and disbursements amounted to EUR 42,400 for
Ms Krylova, EUR 219,571 for Mr Burns and EUR 36,258 for Mr Daniel, that
is EUR 298,229 in total. The applicants submitted copies of legal-services
agreements and other supporting documents.
210. The
Government submitted that the costs had been manifestly excessive and
unreasonable because they largely exceeded the amounts which the Court
normally paid by way of legal aid to the applicants and because they
“did not correspond to the living conditions in Russia”. Moreover,
excepting Ms Krylova's fees, the applicants had not submitted proof
that counsel's fees had actually been paid. Even assuming that the fees
had been paid, the Government claimed that the amount awarded should
not exceed EUR 3,000.
211. The
Court observes that the dissolution proceedings had been instituted
by the Russian authorities for the purpose of banning the activities
of the entire applicant community. The applicants were thus compelled
to deploy substantial resources for defending the interests of the community
and their fellow believers in Moscow. The dissolution proceedings had
undoubtedly been complex and lasted for a formidable 116 court days,
which led the Court to find a separate violation of the reasonable-time
guarantee under Article 6 of the Convention. In these circumstances,
the Court accepts that these proceedings generated a substantial amount
of legal costs and expenses. Nevertheless, it considers that the amount
of counsel's fees excessive. Making a global assessment of costs and
expenses, the Court awards the applicants jointly EUR 50,000, plus any
tax that may be chargeable to them on that amount.
C. Default interest
212. 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
1. Declares admissible the applicants' complaint concerning the
dissolution of the applicant community and the banning of its activity,
the complaint by the applicant community concerning the refusal of its
re-registration, the complaint about discrimination on religious grounds,
and the complaint by the applicant community concerning the excessive
length of the dissolution proceedings, and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 9 of the Convention
read in the light of Article 11 on account of the dissolution of the
applicant community and the banning of its activity;
3. Holds that there has been a violation of Article 11 of the
Convention read in the light of Article 9 on account of the refusal
to allow re-registration of the applicant community;
4. Holds that it is not necessary to examine whether the refusal
of re-registration and/or the decision on dissolution of the applicant
community also disclosed a violation of Article 14 of the Convention;
5. Holds that there has been a violation of Article 6 § 1 of
the Convention on account of the excessive length of the dissolution
proceedings;
6. Holds
(a) that the respondent State is to pay
to the applicants jointly, 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 20,000 (twenty thousand euros) in
respect of non-pecuniary damage, plus any tax that may be chargeable;
and
(ii) EUR 50,000 (fifty thousand euros) 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;
7. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing
on 10 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
JEHOVAH’S WITNESSES
OF MOSCOW v. RUSSIA JUDGMENT
/ 10 Ιουνίου 2010.
