FIRST SECTION
CASE OF THE
MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA
(Application no.
72881/01)
JUDGMENT
STRASBOURG
5 October 2006
This judgment will
become final in the circumstances set out in Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of the Moscow Branch of the Salvation Army v.
Russia,
The European Court of Human Rights (First
Section), sitting as a Chamber composed of:
Mr C.L.
Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14
September 2006,
Delivers the following judgment, which
was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application
(no. 72881/01) 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 Moscow branch of the Salvation Army (“the
applicant branch” or “the applicant”) on 18 May 2001.
2. The applicant was represented before
the Court by Mr V. Ryakhovskiy and Mr A. Pchelintsev of the Slavic Law Centre,
lawyers practising in Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. The applicant complained, in
particular, about the domestic authorities' refusal of its application for
re-registration as a legal entity.
4. The application was allocated to the
First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 24 June 2004, the
Court declared the application partly admissible.
6. The Government, but not the applicant,
filed further written observations (Rule 59 § 1). The Chamber decided, after
consulting the parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
7. On 1 November 2004 the Court changed
the composition of its Sections (Rule 25 § 1). This case was assigned to the
newly composed First Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
A. Background of the case
8. The Salvation Army worked officially
in Russia from 1913 to 1923 when it was dissolved as an “anti-Soviet
organisation”.
9. The Salvation Army resumed its
activities in Russia in 1992 when a group of Russian nationals held a meeting
and adopted the articles of association of the Moscow branch of the Salvation
Army.
10. On 6 May 1992 the Justice Department
of the Moscow City Council of People's Deputies registered the applicant branch
as a religious organisation with status as a legal entity.
11. On 12 September 1997 the Moscow
Justice Department registered the applicant branch's amended articles of
association.
B. Refusal to permit the applicant
branch to re-register
12. 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 which had previously been
granted the status of legal entities to bring their articles of association into
conformity with the Act and to re-register by 31 December 1999.
13. On 18 February 1999 the applicant
submitted to the Moscow Justice Department an application for re-registration as
a local religious organisation.
14. On 16 August 1999 the deputy head of
the Moscow Justice Department notified the applicant that its request for
re-registration was being denied. He advanced three grounds for this refusal.
Firstly, it was claimed that, at the meeting of the Financial Council (the
governing body of the applicant branch) at which amendments to the founding
documents had been adopted, only five members had been in attendance, whereas
the Religions Act required that a religious organisation should have at least
ten founding members. Secondly, it was alleged that no visas for the applicant
branch's foreign members, or other documents establishing their lawful residence
in Russian territory, had been provided. Thirdly, the deputy head referred to
the fact that the applicant branch was subordinate to a centralised religious
organisation in London and inferred therefrom that the applicant branch was
“most probably” a representative office of a foreign religious organisation
operating on behalf and by order of the latter. Accordingly, its activities were
to be governed by Government Regulation no. 310 (see paragraph
46 below).
15. On 7 September 1999 the applicant
challenged the refusal before the Presnenskiy District Court of Moscow. The
Moscow Justice Department submitted its written comments, in which it advanced a
new ground for the refusal of registration:
“...Article 6 of the Charter1
provides that members of the Branch shall include supporters, soldiers, local
officers and officers headed by the Commanding Officer, who is appointed from
London. Members of the Branch wear uniform and perform service, which means that
the Branch is a paramilitary organisation.
Pursuant to Presidential Decree no. 310
of 23 March 1995 'On Measures to Secure Co-ordinated Actions by State
Authorities in the Fight against Fascism and Other Forms of Political Extremism
in the Russian Federation', no paramilitary formations may be established in the
Russian Federation.
We do not consider the use of the word
'Army' in the name of a religious organisation to be legitimate. The Large
Encyclopaedic Dictionary defines the meaning of this word as: 1. The totality of
a State's armed forces...”
As to the remainder, the Moscow Justice
Department repeated and elaborated on the grounds for refusal set out in the
letter of 16 August 1999.
16. On 5 July 2000 the Presnenskiy
District Court gave judgment. It determined that the applicant branch was a
representative office of the international religious organisation “The Salvation
Army” and therefore was not eligible for registration as an independent
religious organisation. In the court's opinion, this fact also prevented the
applicant branch from being granted re-registration. Secondly, it referred to
Article 13 § 5 of the Constitution, banning the founding and functioning of
public associations which advocated a violent change in the constitutional
principles of the Russian Federation or destruction of its integrity, undermined
the security of the State, created paramilitary formations or caused social,
racial, ethnic or religious division or conflict. The court continued as
follows:
“In the course of analysis of the
Charter, certain provisions stood out, on the one hand, as being imbued with
barrack-room discipline, in which members of the religious organisation show
unquestionable subordination to its management and, on the other hand, as
relieving the management and the organisation as a whole of any responsibility
for its members' activities. Thus, according to Article 6 § 3 of the Charter,
'the members of the Branch shall act in compliance with The Salvation Army's
Orders and Regulations and with the instructions of the Commanding Officer', ...
'the Branch as a whole shall not be liable for infringements of the legislation
of the Russian Federation perpetrated by individual members of the Branch'. This
wording of the Charter leads one to conclude that the Charter assumes that the
members of the organisation will inevitably break Russian law in the process of
executing the Salvation Army's Orders and Regulations and the instructions of
the Commanding Officer... The Branch excludes its liability for illegal service
activity by its members.”
Thirdly, the court pointed out that the
grounds for judicial liquidation of the applicant branch, as set out in its
articles of association, were inconsistent with those laid down in Russian law.
Lastly, the court held that the applicant branch had not disclosed its
objectives, given that the articles of association failed to describe “all the
decisions, regulations and traditions of The Salvation Army”.
17. On 28 November 2000 the Moscow City
Court upheld that judgment on appeal, focussing mainly on the applicant branch's
foreign ties. It pointed out that the organisation's executive body included
five foreign nationals who had multiple-entry visas, but not residence permits,
whereas section 9.1 of the Religions Act required founders to be of Russian
nationality. Noting the location of The Salvation Army's headquarters abroad and
the presence of the word “branch” in its name, the City Court concluded that the
Moscow Justice Department had correctly insisted on registration of the
applicant branch as a representative office of a foreign religious organisation.
As a subsidiary argument, the City Court endorsed the District Court's finding
that the articles of association did not indicate the precise religious
affiliation of its members because it was described as “Evangelical Protestant
Christian”, certain clauses of the articles of association mentioned the “faith
of The Salvation Army” and its objective was the “advancement of the Christian
faith”. On the allegedly paramilitary nature of the applicant's activities, the
City Court noted:
“The arguments that [the applicant] is
not a paramilitary organisation does not undermine the [first-instance] court's
findings that the Branch is a representative office of a foreign religious
organisation, The Salvation Army, and that the documents submitted for
re-registration do not conform to the requirements of Russian law”.
18. On 12 July 2000 the Ministry of
Education of the Russian Federation sent the instruction “On Activities of
Non-traditional Religious Associations in the Territory of the Russian
Federation” to Russian regional education departments. The instruction stated,
inter alia:
“...the international religious
organisation The Salvation Army is expanding its activities in the Central part
of Russia. Its followers attempt to influence youth people and the military. The
Salvation Army formally represents the Evangelical Protestant branch of
Christianity; in essence, however, it is a quasi-military religious organisation
that has a rigid hierarchy of management. The Salvation Army is managed and
funded from abroad.”
The applicant branch submitted that this
extract was copied verbatim from an information sheet prepared by the Federal
Security Service of the Russian Federation and forwarded to the Ministry of
Education on 29 May 2000.
19. On 31 December 2000 the time-limit
for re-registration of religious organisations expired. Organisations that had
failed to obtain re-registration were liable for dissolution through the courts.
20. On 2 August and 10 September 2001
the Moscow City Court and the Supreme Court of the Russian Federation,
respectively, refused the applicant branch's request to lodge an application for
supervisory review.
C. Proceedings for dissolution of the
applicant branch
21. On 29 May 2001 the Moscow Justice
Department brought an action for dissolution of the applicant branch.
22. On 12 September 2001 the Taganskiy
District Court of Moscow granted the action for dissolution. The court found
that the applicant branch had failed to notify the Moscow Justice Department on
time about the continuation of its activity and had failed to obtain
re-registration within the time-limit set by the Religions Act. The court held
that the applicant branch had ceased its activity and that it was to be stripped
of its status as a legal entity and struck off the State Register of Legal
Entities. On 6 December 2001 the Moscow City Court upheld that judgment.
23. On 10 September 2001 the applicant
brought a complaint before the Constitutional Court challenging the
constitutionality of section 27 § 4 of the Religions Act, which provided for
dissolution of religious organisations that had failed to re-register before the
time-limit. The applicant argued that the contested provision imposed
dissolution as a form of penalty which could be imposed on a religious
organisation on purely formal grounds, in the absence of any violations or
offences on the part of the organisation. It maintained that the possibility of
no-fault penalty was incompatible with the rule of law and constituted an
encroachment on its constitutional rights.
24. On 7 February 2002 the
Constitutional Court ruled on the complaint. It held that re-registration of a
religious organisation could not be made conditional on the fulfilment of
requirements that were introduced by the Religions Act and which had not legally
existed when the organisation was founded. A court could only decide on the
dissolution of an organisation which had failed to bring its documents into
compliance with the Act if it was duly established that the organisation had
ceased its activity or had engaged in unlawful activities. The court also
emphasised that a judicial decision on dissolution of an organisation that
failed to obtain re-registration was to be reasoned beyond a mere reference to
such formal grounds for dissolution as the failure to re-register or the failure
to provide information on the continuation of its activity. Finally, the court
held that the applicant's case was to be reheard in the part affected by the
Constitutional Court's different interpretation of the Religions Act.
25. On 1 August 2002 the Presidium of
the Moscow City Court quashed the judgment of 12 September 2001 and remitted the
case for a fresh examination by a differently composed bench.
26. On 18 February 2003 the Taganskiy
District Court of Moscow dismissed the action for dissolution of the applicant
branch brought by the Moscow Justice Department. The court founded its decision
on the Constitutional Court's ruling.
27. On 20 March 2003 the Moscow Justice
Department lodged an appeal. It submitted, firstly, that the judicial decisions
upholding its refusal of re-registration remained effective and, secondly, that
the entering of information on the applicant branch in the Unified State
Register of Legal Entities did not constitute re-registration for the purposes
of the Religions Act.
28. On 16 April 2003 the Moscow City
Court rejected the appeal and upheld the District Court's judgment of 18
February 2003.
D. The effect of the refusal to grant
re-registration
29. The applicant submitted that the
refusal to re-register it had had an adverse impact on its activity.
30. Following the expiry of the
time-limit for re-registration on 31 December 2000, the applicant branch's
assets had had to be transferred, in order to avoid seizure, to the community of
The Salvation Army which had been re-registered at federal level. The transfer
process had required considerable time and effort, involving: title to three
properties; title to and registration of fourteen vehicles; opening of a new
bank account; replacement of every employee's contract; renegotiation of
twenty-six rental contracts, etc. Each of these transfers had necessitated
complex bureaucratic steps and a diversion of resources from religious activity.
31. The refusal had also resulted in
negative publicity which severely undermined the applicant branch's efforts at
charitable fund-raising and generated distrust among landlords who refused to
negotiate leases with the applicant branch.
32. In at least one neighbourhood, the
applicant branch's mission of delivering hot meals to house-bound elderly
persons had had to be stopped entirely, because an official of the local
administration had refused to work with the applicant branch as it had no
official registration.
33. The lack of re-registration had made
it impossible for twenty-five foreign employees and seven non-Moscow Russian
employees to obtain residence registration in Moscow, which was required by law
for everyone who stayed in the city for more than three days.
E. Articles of association of the
applicant branch
34. The articles of association of the
applicant branch, approved on 6 May 1992 and amended on 2 September 1997, read
in the relevant parts as follows:
§ 1 – General provisions
“(1) 'The Religious Association called
the Moscow Branch of The Salvation Army, a non-commercial charitable
organisation, was established by its first members... with the aim of professing
and advancing the Christian religion...
(2) The first members are parties who
uphold the Articles of Faith of The Salvation Army as set out in Schedule I
hereto...
(3) The Branch shall be part of The
Salvation Army international religious organisation and shall be subordinate
thereto.
...
(5) The religious activities of the
Branch shall be determined according to the Articles of Faith of The Salvation
Army as an evangelistic Christian church.”
§ 2 – Objectives, tasks and
forms of activity
“(1) The objectives of the Branch shall
be the advancement of the Christian faith, as promulgated in the religious
doctrines which are professed, believed and taught by The Salvation Army, the
advancement of education, the relief of poverty and other acts of charity...”
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian
Federation
35. Article 29 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.
36. Article 30 provides that everyone
shall have the right to freedom of association.
B. The Religions Act
37. On 1 October 1997 the Federal Law on
Freedom of Conscience and Religious Associations (no. 125-FZ of 26 September
1997 – “the Religions Act”) entered into force.
38. The founding documents of religious
organisations that had been established before the Religions Act were to be
amended to conform to the Act. Until so amended, the founding documents remained
operative in the part which did not contradict the terms of the Act (section 27
§ 3).
39. By letter of 27 December 1999 (no.
10766-СЮ), the Ministry of Justice informed its departments that the Religions
Act did not establish a special procedure for re-registration of religious
organisations. Since section 27 § 3 required them to bring their founding
documents into conformity with the Religions Act, the applicable procedure was
the same as that for registration of amendments to the founding documents
described in section 11 § 11. Section 11 § 11 provided that the procedure for
registration of amendments was the same as that for registration of a religious
organisation.
40. The list of documents submitted for
registration was set out in section 11 § 5. If the governing centre or body to
which the religious organisation was subordinate was located outside Russia, the
religious organisation was additionally required to submit the certified
articles of association of that foreign centre or body (section 11 § 6).
41. Section 12 § 1 stated that
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.”
42. Section 12 § 2 provided that a
reasoned refusal of registration was to be communicated to the interested party
in writing. It was prohibited to refuse to register a religious organisation on
the ground that its establishment was inexpedient.
43. Re-registration could be denied to a
religious organisation if there existed grounds for its dissolution or for the
banning of its activities, as set out in section 14 § 2. Section 14 § 2
established the following list of grounds for dissolution of a religious
organisation and the banning of its activities:
“- breach of public security and
public order, the undermining of State security;
- actions aimed at a forcible
change in the foundations of the constitutional structure or destruction of the
integrity of the Russian Federation;
- formation of armed units;
- propaganda of war, incitement
to social, racial, ethnic or religious discord or hatred between people;
- coercion to destroy the
family;
- infringement of the
personality, rights and freedoms of citizens;
- infliction of harm,
established in accordance with the law, to the morality or health of citizens,
including the use of narcotic or psychoactive substances, hypnosis, commission
of depraved and other disorderly acts in connection with religious activities;
- encouragement of suicide or
the refusal on religious grounds of medical assistance to persons in life- or
health-threatening conditions;
- interference with the receipt
of compulsory education;
- coercion of members and
followers of a religious association and other persons to alienate their
property for the benefit of the religious association;
- hindering a citizen from
leaving a religious association by threatening harm to life, health, property,
if the threat can actually be carried out, or by application of force or
commission of other disorderly acts;
- inciting citizens to refuse to
fulfil their civil duties established by law or to commit other disorderly
acts.”
44. Section 27 § 4 in its original
wording specified that the
re-registration of religious organisations was to be completed by
31 December 1999. Subsequently the time-limit was extended until 31 December
2000. Following the expiry of the time-limit, religious organisations were
liable for dissolution by a judicial decision issued on an application by a
registration authority.
C. Procedure for registration of
legal entities
45. On 1 July 2002 a new federal law on
the State registration of legal entities (no. 129-FZ of 8 August 2001) became
effective. State registration of legal entities was delegated to the Ministry
for Taxes and Duties, which was to receive, within six months, the lists and
files of registered legal entities from the bodies that had previously been in
charge of their registration, and to enter that information into the Unified
State Register of Legal Entities (Government Regulations no. 319 of 17 May 2002,
and nos. 438 and 441 of 19 June 2002).
D. Representative offices of foreign
religious organisations
46. By Regulation no. 130 of 2 February
1998, the Government approved the procedure for registration of representative
offices of foreign religious organisations. The regulation defines a foreign
religious organisation as an organisation established outside Russia under the
laws of a foreign State (point 2). A representative office of a foreign
religious organisation does not have the status of a legal entity (point 3) and
may not engage in ritual and religious activities (point 5).
III. RELEVANT COUNCIL OF
EUROPE DOCUMENTS
47. 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.
97. In its preamble the law recognises
'the special role of Orthodoxy in the history of Russia and in the establishment
and development of its spiritual and cultural life' and respects 'Christianity,
Islam, Buddhism, Judaism and other religions constituting an integral part of
the historical heritage of the peoples of Russia'...
98. According to the regulations by the
Ministry of Justice, - responsible for the implementation of the law on freedom
of conscience and religious associations -, religious organisations established
before the law came into force (26 September 1997) had to re-register before 31
December 2000.
99. The registration process was finally
completed on 1 January 2001 as the State Duma decided to extend the deadline
twice. About 12,000 religious organisations and groups have been registered, and
only 200 were refused their registration, most of them because they failed to
produce a complete file. Many others have, for a variety of reasons, failed to
register. The Minister of Justice, Mr Chaika strongly rejected allegations that
the Orthodox Church had exerted pressure on the Ministry to prevent some
religious organisations from obtaining their registration. Mr Chaika also
indicated that experts of the Ministry had 'closely examined' the status of the
Salvation Army and the Jehovah's Witnesses, and had come to the conclusion that
nothing prevented [their] registration at the federal level.
100. The Salvation Army, which feeds
around 6,000 Russians every month in the winter, has had to waste tens of
thousands of dollars in legal fights over registration, and the Catholic church
(as well as the Jewish community) has had trouble getting visas for its foreign
clergy. Some other religious organisations have also been prevented from being
registered at the local level: the Adventist Church, the Pentecostal Church, the
Baptists, the Evangelist Church and other churches in particular in Tatarstan,
in the region of Rostov and in Vladimir oblast. These religious organisations
also voiced complaints that they had serious difficulties to settle, to build or
buy their places of worship, or to recover confiscated properties. Some among
them – e.g. the True Orthodox Church, the Union of Evangelists Pentecotists –
have claimed that they suffered from repeated harassment by the authorities.
101. Indeed, there have been cases where,
even if a religious organisation had re-registered nationally, local authorities
created obstacles...
103. Although on 22 February 2001, the
Russian Justice Ministry finally re-registered the Salvation Army in Russia, at
federal level, registration had been constantly denied to the Moscow chapter of
this religious organisation by the Chief Directorate of the Ministry of Justice
in Moscow, and appeals to the various courts in Moscow failed. Moreover, in
April 2001, dissolution procedures were put in place to close down Salvation
Army Corps and social programs within Moscow, and on 11 September 2001 the
Tagansk[iy] intermunicipal court ruled that the Moscow chapter was subject to
dissolution on the basis of article 27 of the 1997 federal law. (It provides for
the dissolution of the legal entity that did not reregister by the
31 December 2000 deadline.)
104. The co-rapporteurs are very
surprised and puzzled by the decision to ban the operations of the Salvation
Army in Moscow, and they would highly appreciate the clarification of this
matter by the Russian authorities. In this respect, they refer to the Monitoring
Committee's call on Russia of 6 September 2001 to ensure that the Salvation Army
enjoys the same rights as it has in other member states of the Council of
Europe, including the right to be registered in Moscow. During their
fact-finding visit in November 2001, the co-rapporteurs used every opportunity
to stress the need for a solution, and the potential embarrassment this problem
may cause for Russia.”
48. 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; ...”
49. Resolution 1278 (2002) on Russia's
law on religion, adopted by the Parliamentary Assembly of the Council of Europe
on 23 April 2002, noted, in particular, the following:
“1. The new Russian law on religion
entered into force on 1 October 1997, abrogating and replacing a 1990 Russian
law – generally considered very liberal – on the same subject. The new law
caused some concern, both as regards its content and its implementation. Some of
these concerns have been addressed, notably through the judgments of the
Constitutional Court of the Russian Federation of 23 November 1999, 13 April
2000 and 7 February 2002, and the religious communities' re-registration
exercise at federal level successfully completed by the Ministry of Justice on 1
January 2001. However, other concerns remain. ...
5. Moreover, some regional and local
departments of the Ministry of Justice have refused to (re)register certain
religious communities, despite their registration at federal level. The federal
Ministry of Justice does not seem to be in a position to control these regional
and local departments in accordance with the requirements of the rule of law,
preferring to force religious communities to fight these local departments over
registration in the courts rather than taking remedial action within the
ministry. The case of the Moscow branch of the Salvation Army deserves
particular attention in this respect, and should lead to an internal
disciplinary inquiry by the federal Ministry of Justice into the workings of its
Moscow department. The Moscow Department of Justice tried to close down this
branch of the Salvation Army (despite federal registration), for allegedly
failing to re-register by the law's deadline. The Constitutional Court ruled in
favour of the Salvation Army on 7 February 2002.
6. Therefore, the Assembly recommends to
the Russian authorities that:
i. the law on religion be more uniformly
applied throughout the Russian Federation, ending unjustified regional and local
discrimination against certain religious communities and local officials'
preferential treatment of the Russian Orthodox Church, and in particular their
insisting in certain districts that religious organisations obtain prior
agreement for their activities from the Russian Orthodox Church;
ii. the federal Ministry of Justice
become more proactive in resolving disputes between its local/regional officials
and religious organisations before disputes are brought before the courts, by
taking remedial action within the ministry in case of corruption and/or
incorrect implementation of the law on religion, thus rendering it unnecessary
to take such cases to the courts...”
THE LAW
I. ALLEGED VIOLATION OF
ARTICLES 9 AND 11 OF THE CONVENTION
50. The applicant branch complained
under Articles 9 and 11 of the Convention that the refusal to grant it the
status of a legal entity had severely curtailed its ability to manifest its
religion in worship and practice. 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. Arguments by the parties
1. The Government
51. The Government claimed that the
applicant branch was not a “victim” of the alleged violations because it had
continuously held the status of a legal entity. Regard being had to the
Taganskiy District Court's judgment of 18 February 2003, there could be no doubt
that the applicant branch had continued to operate without any hindrance.
52. The applicant's claim that refusal
of re-registration would lead to its dissolution as a legal entity was mistaken.
Even assuming that section 27 § 4 of the Religions Act provided for dissolution
on the ground of refused re-registration, the Constitutional Court's ruling of 7
February 2002 precluded the dissolution of a legal entity that had not been
re-registered for formal reasons. Under the Russian Civil Code, a legal entity
ceased to exist once an entry to that effect had been made in the Unified State
Register of Legal Entities. In the present case, however, the applicant branch
was listed in the Unified Register and had full legal capacity; on 1 October
2002 the Moscow Tax Inspection Office no. 39 had assigned a registration number
to it.
53. The Government further submitted
that the lawful requirement to bring the founding documents of a religious
organisation into compliance with the existing law did not amount to an
interference within the meaning of paragraph 1 of Articles 11 or 9 of the
Convention. In any event, the Russian authorities could not be blamed for the
applicant branch's unwillingness to apply for re-registration.
2. The applicant
54. The applicant branch pointed out
that it had never claimed that the requirement to bring the founding documents
into compliance with the existing law interfered with its rights as such. Its
rights had been violated by the arbitrary and unlawful application and
interpretation of that requirement by the Moscow Justice Department and the
domestic courts. The classification of the Salvation Army as a paramilitary
organisation and the assumption that its members would inevitably break the law
were not founded on any factual evidence and represented an impermissible
judgment about the legitimacy of the religion practiced by the applicant branch.
55. The applicant did not dispute that
the judgment of the Taganskiy District Court of 18 February 2003 had made its
dissolution less likely. However, in its view, the threat of dissolution
persisted since religious organisations that failed to obtain re-registration
were to be dissolved by a judicial decision in accordance with section 27 § 4 of
the Religions Act.
56. Finally, the applicant emphasised
that the legal time-limit for re-registration had expired on 31 December 2000
and no further extension had been granted. It was therefore legally impossible
to file a new application for re-registration, contrary to what the Government
suggested.
B. The Court's assessment
1. General principles
57. 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).
58. 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).
59. 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).
60. As has been stated many times in the
Court's judgments, not only is political democracy a fundamental feature of the
European public order but the Convention was designed to promote and maintain
the ideals and values of a democratic society. Democracy, the Court has
stressed, is the only political model contemplated in the Convention and the
only one compatible with it. By virtue of the wording of the second paragraph of
Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only
necessity capable of justifying an interference with any of the rights enshrined
in those Articles is one that may claim to spring from “democratic society” (see
United Communist Party of Turkey and Others v. Turkey, judgment of 30 January
1998, Reports of Judgments and Decisions 1998-I, §§ 43-45, and Refah Partisi
(the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98
and 41344/98, §§ 86-89, ECHR 2003-II).
61. While in the context of Article 11
the Court has often referred to the essential role played by political parties
in ensuring pluralism and democracy, associations formed for other purposes,
including those proclaiming or teaching religion, are also important to the
proper functioning of democracy. For pluralism is also built on the genuine
recognition of, and respect for, diversity and the dynamics of cultural
traditions, ethnic and cultural identities, religious beliefs, artistic,
literary and socio-economic ideas and concepts. The harmonious interaction of
persons and groups with varied identities is essential for achieving social
cohesion. It is only natural that, where a civil society functions in a healthy
manner, the participation of citizens in the democratic process is to a large
extent achieved through belonging to associations in which they may integrate
with each other and pursue common objectives collectively (see Gorzelik and
Others v. Poland [GC], no. 44158/98, § 92, 17 February 2004).
62. 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, cited above, §§ 94-95,
with further references).
2. The applicant branch's status
as a “victim” of the alleged violations
63. In the Government's submission, so
long as the applicant branch had not been dissolved and had retained its status
as a legal entity, there had been no interference with its Convention rights and
it could not therefore claim to be a “victim” of any violation.
64. The Court does not share the
Government's view. According to the Convention organs' constant approach, the
word “victim” denotes the person directly affected by the act or omission which
is in issue (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31,
§ 27, and Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A
no. 45, § 41). In the present case the applicant branch complained that it had
been denied re-registration because of the allegedly arbitrary interpretation of
the requirements of the Religions Act. It is undisputed that the refusal of
re-registration directly affected its legal position.
65. The Government appear to consider
that this refusal has not been detrimental to the applicant branch. The Court
recalls in this connection that the existence of a violation is conceivable even
in the absence of prejudice or damage; the question whether an applicant has
actually been placed in an unfavourable position is not a matter for Article 34
of the Convention and the issue of damage becomes relevant only in the context
of Article 41 (see, among many authorities, Marckx, loc. cit.; Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, § 66; and Wassink v. the Netherlands,
judgment of 27 September 1990, Series A no. 185-A, § 38).
66. The Government further appear to
claim that the inclusion of the applicant branch in the Unified Register of
State Enterprises in October 2002 effaced the adverse consequences of the
previous dissolution proceedings. The Court recalls that a decision or measure
favourable to an applicant is not in principle sufficient to deprive him of his
status as a “victim” unless the national authorities have acknowledged the
breach of the Convention, either expressly or in substance, and then afforded
redress for that breach (see Amuur v. France, judgment of 25 June 1996, Reports
of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). In the instant case the domestic authorities
have not acknowledged that the refusal of re-registration amounted to a
violation of the applicant's Convention rights. In fact, the judicial decisions
upholding the refusal have not been set aside and have remained in force to
date. The rulings by the Constitutional Court and by the Taganskiy District
Court, to which the Government referred, only concerned the proceedings for
dissolution of the applicant branch and were of no consequence to its claim for
re-registration.
67. It transpires from the registration
record produced by the Government that the entries concerning the applicant
branch had been made “in connection with entering information into the Unified
State Register of Legal Entities” (line no. 263) and following “transfer of the
registration file from another registration authority” (line no. 289). This
means that the inclusion of information on the applicant branch was solely
linked to the establishment of a new register (the Unified State Register of
Legal Entities) and to the shifting of registration competence from one
authority to another following enactment of a new procedure for the registration
of legal entities (see paragraph
45 above). In their
statement of appeal, the Moscow Justice Department – that is, the authority with
responsibility for registering religious associations – expressly confirmed that
the entering of such information could not constitute “re-registration” for the
purposes of the Religions Act (see paragraph
27 above).
68. The Court also observes that the
Government have not commented on the applicant's legal status before 1 October
2002. However, the facts, undisputed by the parties, reveal that applicant
branch's status as a legal entity was legally discontinued at least from 6
December 2001, when the Moscow City Court ordered its dissolution for failure to
comply with the re-registration requirement, to 1 August 2002, when that
judgment was quashed by way of supervisory-review proceedings.
69. Finally, the Government's argument
that the applicant is not a “victim” because it may still apply for
re-registration is self-defeating, for it confirms that the applicant has been
denied re-registration to date. In any event, the Government omitted to specify
which legal provisions would currently entitle the applicant to apply for
re-registration, which would obviously be belated following the expiry of the
extended time-limit on 31 December 2000.
70. Having regard to the above
considerations, the Court finds that the applicant may “claim” to be a “victim”
of the violations complained of. In order to ascertain whether it has actually
been a victim, the merits of its contentions have to be examined.
3. Existence of interference
with the applicant's rights
71. 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 consistently held the view that a refusal by the
domestic authorities to grant status as a legal entity to an association of
individuals amounts 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
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 [GC], no. 30985/96, § 62, ECHR
2000-XI).
72. The Court observes that in 1997 the
respondent State enacted a new Religions Act which required all the religious
organisations that had been previously granted legal-entity status to amend
their articles of association in conformity with the new Act and to have them
“re-registered” within a specific time-period (see paragraphs
38 and
44 above). The procedure for
“re-registration” was the same as for the initial registration of a religious
organisation and the same grounds for refusing a registration application
applied (see paragraphs 39
and 41 above). In addition,
“re-registration” could be refused if grounds existed for dissolving a religious
organisation or for banning its activities (see paragraph
43 above). A failure to obtain
“re-registration” for whatever reason before the expiry of the time-limit
exposed the religious organisation to a threat of dissolution by judicial
decision (see paragraph 44
above).
73. The Court notes that, prior to the
enactment of the new Religions Act, the applicant branch had lawfully operated
in Russia since 1992. It was unable to obtain “re-registration” as required by
the Religions Act and consequently became liable for dissolution by operation of
law. After 6 December 2001, when it exhausted ordinary domestic remedies against
the judicial decision ordering its dissolution, and until that decision was
quashed by way of supervisory review on 1 August 2002, the applicant branch
continuously ran the risk of having its accounts frozen and its assets seized
(cf. Christian Democratic People's Party v. Moldova (dec.), no. 28793/02, 22
March 2005). The Court accepts that that situation had an appreciably
detrimental effect on its functioning and religious activities (see paragraphs
29 to
33 above). Even though the
Constitutional Court's ruling later removed the immediate threat of dissolution
from the applicant branch, it is apparent that its legal capacity is not
identical to that of other religious organisations that obtained re-registration
certificates. The Court observes that in other cases the absence of
re-registration was invoked by the Russian authorities as a ground for refusing
registration of amendments to the articles of association or for staying the
registration of a religious newspaper (see Church of Scientology Moscow and
Others v. Russia (dec.), no. 18147/02, 28 October 2004).
74. The Court considers that in the
present circumstances, in which the religious organisation was obliged to amend
its articles of association and where registration of such amendments was
refused by the State authorities, with the result that it lost its legal-entity
status, there has been an interference with the organisation's right to freedom
of association. As the Religions Act restricts the ability of a religious
association without legal-entity status to exercise the full range of religious
activities (see Kimlya, Sultanov and Church of Scientology of Nizhnekamsk v.
Russia (dec.), nos. 76836/01 and 32782/03, 9 June 2005), this situation must
also be examined in the light of the organisation's right to freedom of
religion.
75. Accordingly, as the Court has found
that there has been an interference with the applicant's rights under Article 11
of the Convention read in the light of Article 9 of the Convention, it must
determine whether such 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).
4. Justification for the
interference
(a) General principles applicable to
the analysis of justification
76. The Court reiterates that the list
of exceptions to freedom of religion and assembly, as contained in Articles 9
and 11 of the Convention, is exhaustive. The 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. In determining whether a
necessity within the meaning of paragraph 2 of these Convention provisions
exists, the States have only a limited margin of appreciation, which goes hand
in hand with rigorous European supervision embracing both the law and the
decisions applying it, including those given by independent courts (see
Gorzelik, cited above, § 95; Sidiropoulos, cited above, § 40; and Stankov and
the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and
29225/95, § 84, ECHR 2001-IX).
77. 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, cited
above, § 47, and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania,
no. 46626/99, § 49, ECHR 2005-I (extracts)).
(b) Arguments put forward in
justification of the interference
78. The Court observes that the grounds
for refusing re-registration of the applicant branch were not consistent
throughout the domestic proceedings. Although the Moscow Justice Department
initially referred to an insufficient number of founding members and the absence
of documents showing their lawful residence in Russia, these purported defects
found no mention in the subsequent judicial decisions (see paragraphs
14,
16 and
17 above). The allegedly paramilitary
nature of the applicant's structure did not form part of the initial decision
refusing re-registration and the Department put that argument forward for the
first time in its comments on the applicant's claim to a court (see paragraph
15 above). That reason was accepted
by the District Court but the City Court did not consider that it required
separate examination (see paragraph 17
above). Finally, the argument about inconsistent indication of the applicant's
religious affiliation was not relied upon by the Justice Department and appeared
for the first time in judicial decisions (ibid.)
79. The Government did not specify the
particular grounds for denying re-registration to the applicant branch. They did
not advance any justification for the interference.
80. In these circumstances, the Court
will examine in turn two groups of arguments that were put forward for refusing
the applicant's re-registration: those relating to the applicant branch's
“foreign origin” and those relating to its internal structure and religious
activities.
(i) The applicant branch's “foreign
origin”
81. The Russian authorities held that
since the applicant's founders were foreign nationals, in that it was
subordinate to the central office in London and had the word “branch” in its
name, it must have been a representative office of a foreign religious
organisation ineligible for “re-registration” as a religious organisation under
Russian law.
82. The Court observes, firstly, that
the Religions Act indeed prohibited foreign nationals from being founders of
Russian religious organisations. It finds, however, no reasonable and objective
justification for a difference in treatment of Russian and foreign nationals as
regards their ability to exercise the right to freedom of religion through
participation in the life of organised religious communities.
83. Secondly, it does not appear that
the presence of The Salvation Army's headquarters abroad prevented registration
of the applicant as a Russian religious organisation. Section 11 § 6 of the
Religions Act concerned precisely the situation where a Russian religious
organisation was subordinate to the central governing body located abroad (see
paragraph 40 above). The only
additional requirement in that case was the production of the certified articles
of association of the foreign governing body; that circumstance was not a legal
ground for refusing registration or re-registration.
84. Thirdly, under the Religions Act,
the only instance in which a religious organisation's name could preclude its
registration was where it was identical to the name of another registered
organisation. It has not been claimed that this was the case of the applicant
branch. By law, the mere presence of the word “branch” in its name was not a
circumstance precluding its registration.
85. Finally, the Court notes that, by
the time of the events, the applicant branch had existed for seven years as an
independent legal entity exercising a broad range of religious rights. The
Moscow Justice Department and domestic courts insisted that it should be
registered as a representative office of a foreign religious organisation with
the consequence that under Russian law it would not be entitled to status as a
legal entity or to continue its religious activities (see paragraph
46 above). As noted above, that claim
by the domestic authorities had no legal foundation. Accordingly, in the Court's
assessment, it amounted to a refusal on the ground that its establishment was
inexpedient, which had been expressly prohibited by section 12.2 of the
Religions Act (see paragraph 42
above).
86. It follows that the arguments
pertaining to the applicant's alleged “foreign origin” were neither “relevant
and sufficient” for refusing its re-registration, nor “prescribed by law”.
(ii) Religious structure of the
applicant branch
87. The District and City Courts held
that the applicant branch did not set out its religious affiliation and
practices in a precise manner but confusingly referred to the Evangelical faith,
the faith of The Salvation Army and the Christian faith and omitted to describe
all of its decisions, regulations and traditions.
88. The Court observes that the
applicant's articles of association submitted for re-registration clearly
designated the applicant branch as a religious organisation adhering to the
tenets of the Christian faith. A schedule that formed an integral part of its
articles of associations set out the premises on which the religious doctrine of
The Salvation Army was founded.
89. The Religions Act did not lay down
any guidelines as to the manner in which the religious affiliation or
denomination of an organisation should be described in its founding documents.
Section 10 § 2 of the Religions Act, to which the City Court referred, merely
required the indication of the organisation's creed (veroispovedanie). There was
no apparent legal basis for the requirement to describe all “decisions,
regulations and traditions”.
90. If the applicant's description of
its religious affiliation was not deemed complete, it was the national courts'
task to elucidate the applicable legal requirements and thus give the applicant
clear notice how to prepare the documents in order to be able to obtain
re-registration (see Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006).
This had not, however, been done. Accordingly, the Court considers that this
ground for refusing registration has not been substantiated.
91. Further, the Moscow Justice
Department alleged that the applicant branch should be denied registration on
the ground that it was a “paramilitary organisation”, since its members wore
uniform and performed service, and because the use of the word “army” in its
name was not legitimate. The District Court endorsed that argument.
92. The Court points out that, according
to its constant case-law, 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 Hasan and Chaush, cited above, § 78, and Manoussakis and Others
v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions
1996-IV, § 47). It is undisputable that for the members of the applicant branch,
using ranks similar to those used in the military and wearing uniforms were
particular ways of organising the internal life of their religious community and
manifesting The Salvation Army's religious beliefs. It could not seriously be
maintained that the applicant branch advocated a violent change in the State's
constitutional foundations or thereby undermined the State's integrity or
security. No evidence to that effect had been produced before the domestic
authorities or by the Government in the Convention proceedings. It follows that
the domestic findings on this point were devoid of factual basis.
93. The District Court also inferred
from the applicant's articles of association that the members of the applicant
branch would “inevitably break Russian law in the process of executing The
Salvation Army's Orders and Regulations and the instructions of the Commanding
Officer”.
94. The Court reiterates that an
association's programme may in certain cases conceal objectives and intentions
different from the ones it proclaims. To verify that it does not, the content of
the programme must be compared with the actions of the association's leaders and
the positions they embrace (see Refah Partisi, § 101, and Partidul Comunistilor,
§ 56, both cited above).
95. There was no evidence before the
domestic courts that in seven years of its existence the applicant branch, its
members or founders had contravened any Russian law or pursued objectives other
than those listed in its articles of associations, notably the advancement of
the Christian faith and acts of charity. It follows that this finding by the
District Court also lacked evidentiary basis and was therefore arbitrary.
(iii) Further considerations relevant
for the Court's assessment
96. As noted above, by the time the
re-registration requirement was introduced, the applicant branch had lawfully
existed and operated in Russia as an independent religious community for more
than seven years. It has not been submitted that the community as a whole or its
individual members had been in breach of any domestic law or regulation
governing their 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 the case-law cited in
paragraph 76 above). In the
present case no such reasons have been put forward by the domestic authorities.
97. It is also relevant for the Court's
assessment that, unlike the applicant branch, other religious associations
professing the faith of The Salvation Army have successfully obtained
re-registration in Russian regions and at federal level (see points 99 and
101-04 of the Report on Russia's Honouring of its Commitments, cited in
paragraph 47 above, and point
5 of the Parliamentary Assembly's Resolution on the Russian Religions Act, cited
in paragraph 49 above). In view
of the Court's finding above that the reasons invoked by the Moscow Justice
Department and endorsed by the Moscow courts in order to deny re-registration of
the applicant branch had no legal or factual basis, it can be inferred that, in
denying registration to the Moscow branch of The Salvation Army, the Moscow
authorities did not act in good faith and neglected their duty of neutrality and
impartiality vis-à-vis the applicant's religious community (see Metropolitan
Church of Bessarabia, § 123, Hasan and Chaush, § 62, both cited above).
(c) Conclusion
98. In the light of the foregoing, the
Court considers that the interference with the applicant'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.
II. ALLEGED VIOLATION OF
ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLES 9 AND 11
99. The applicant branch further
complained under Article 14 of the Convention, read in conjunction with Articles
9 and 11, that it had been discriminated against on account of its 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.”
100. The Court reiterates 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).
101. In the circumstances of the present
case the Court considers that the inequality of treatment, of which the
applicant claimed to be a victim, has been sufficiently taken into account in
the above assessment that led to the finding of a violation of substantive
Convention provisions (see, in particular, paragraphs
82 and
97 above). 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).
III. APPLICATION OF ARTICLE
41 OF THE CONVENTION
102. 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
103. The applicant claimed 50,000 euros
(EUR) in respect of compensation for non-pecuniary damage resulting from the
arbitrary refusal of re-registration and the negative publicity linked to its
designation as a “paramilitary organisation”.
104. The Government considered the claim
excessive and vague. They also claimed that the applicant had failed to seek
redress for the alleged non-pecuniary damage before the domestic courts.
105. The Court considers that the
violation it has found must have caused the applicant non-pecuniary damage for
which, ruling on an equitable basis, it awards EUR 10,000, plus any tax that may
be chargeable.
B. Costs and expenses
106. The applicant did not claim costs
and expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
107. 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. Holds that the applicant may claim to
be a “victim” for the purposes of Article 34 of the Convention;
2. Holds that
there has been a violation of Article 11 of the Convention read in the light of
Article 9;
3. Holds that
no separate examination of the same issues under Article 14 of the Convention is
required;
4. Holds
(a) that the respondent State is
to pay the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros) in respect of non-pecuniary damage, to be converted into Russian
roubles at the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
5. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in
writing on 5 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
