EHRM, 05-10-2006, nr. 72881/01

The Government claimed that the applicant branch was not a ‘victim’ of the alleged violations because it had continuously held legal-entity status. 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.

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.

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's unwillingness to apply for re-registration.

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. 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 applicant's religion.

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.

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.

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).

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).

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).

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).

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).

In the Government's submission, so long as the applicant branch had not been dissolved and had retained its legal-entity status, there had been no interference with its Convention rights and it could not therefore claim to be a ‘victim’ of any violation.

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 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.

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).

The Government further appear to claim that the entering of the applicant branch into 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.

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 entering 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 registration of legal entities (see paragraph 45 above). In their statement of appeal, the Moscow Justice Department — that is, the authority competent to register 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).

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 the legal-entity status of the applicant branch 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.

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 by operation of which legal provisions the applicant may at the present time submit its application for re-registration, which would obviously be belated following the expiry of the extended time-limit on 31 December 2000.

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.

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 legal-entity status 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).

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 an initial registration of a religious organisation and the same grounds for refusing an application for registration applied (see paragraphs 39 and 41 above). In addition, ‘re-registration’ could be refused if there existed grounds 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).

The Court notes that before 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 by operation of law became liable for dissolution. 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 of 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).

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.

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 it 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).