EHRM, 11-01-2007, nr. 184/02

Between 1997 and 2001 the Chelyabinsk community of Jehovah's Witnesses filed twelve applications for State registration with the regional Department of the Ministry of Justice. Their applications were refused on 17 May 1996, 20 June and 3 November 1997, 21 January, 30 April, 28 June, 15 July and 16 December 1999, 30 June and 17 August 2000, 11 May and 24 September 2001. Each refusal was justified by reference to alleged formal defects in the registration documents.

The applicants complained to a court. On 24 July 2002 the Tsentralniy District Court of Chelyabinsk ruled that the refusal of 24 September 2001 had been unlawful. On 28 October 2002 the Chelyabinsk Regional Court upheld this decision and ordered the registration of the Chelyabinsk community of Jehovah's Witnesses. On 31 March 2003 the community was officially registered by the Chief Directorate of the Ministry of Justice for the Chelyabinsk Region.

In the applicants' submission, Ms Yekaterina Gorina, appointed by the Chelyabinsk Regional Governor as Chairwoman of the regional Human Rights Commission (‘the Commissioner’), had attempted on several occasions to initiate criminal proceedings against the Chelyabinsk community of Jehovah's Witnesses on the ground that the community had ‘lured’ young children into their ‘sect’.

On 25 May 1999 a senior investigator with the Chelyabinsk town prosecutor's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the Jehovah's Witnesses' community.

Following the Commissioner's intervention, the decision of 25 May 1999 was reversed and an additional inquiry was ordered.

On 3 March 2000 the deputy Chelyabinsk town prosecutor again dismissed the allegations against the members of the Jehovah's Witnesses' community on the ground that no evidence pointing towards a criminal offence could be found.

On 6 February 1999 Mr Z., a member of the local community of Jehovah's Witnesses, acting on behalf of the Administrative Centre of the Religious Organisation of Jehovah's Witnesses, negotiated a lease agreement with Mr U., principal of vocational training college no. 85 in Chelyabinsk, in respect of the college auditorium and associated facilities. According to Article 1.1 of the lease agreement, the premises were rented for the purpose of holding religious meetings on Tuesdays between 7 a.m. and 9 p.m. and on Sundays between 10 a.m. and 4 p.m., outside the normal college teaching hours.

The lease agreement was intended to run from 7 February to 31 December 1999. It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave one month's advance notice of its intent to terminate the agreement. No such notice appears to have been given by either party. Thereafter the agreement continued to run for the extended one-year period, but with the lessees only authorised to terminate it subject to two months' notice in writing. There was no reciprocal power for the college to terminate the agreement during the extended period.

By April 2000 the applicants had been using the college facilities for fourteen months and had paid their rent on time and in accordance with the terms and conditions. As a means of raising additional revenue for the college, its principal entered into similar lease agreements with four other organisations.

On 31 March 2000 the Chief Directorate for Vocational Training and Science of the Chelyabinsk Regional Administration issued an order prohibiting all educational establishments in the Chelyabinsk Region from renting out their premises for religious services, meetings, and so forth.

On 12 April 2000 the Commissioner, together with an unidentified senior police officer, visited Mr U., principal of college no. 85, and attempted to persuade him to terminate the lease agreement with the applicants. The principal refused the request. The Commissioner demanded to see the agreement and took a photocopy of it. She then asked a number of detailed questions about the days and times of the Jehovah's Witnesses' meetings. The principal provided the information.

On an unspecified date the applicants complained to the Chelyabinsk town prosecutor about the actions of the Commissioner and the police officers. They requested a criminal investigation into the officials' actions.

The prosecutor's office put questions to the Commissioner, Mr Lozovyagin and Mr Vildanov. In their written statements of 3 May 2000 the officials claimed that they had investigated a complaint by a 15-year-old girl who had been ‘lured’ into the Jehovah's Witnesses ‘sect’. The Commissioner stated that ‘Lozovyagin and Vildanov [had] decided to halt the event, which was being held by an unknown organisation in sign language’. Mr Lozovyagin did not deny that he had asked Mr Kuznetsov for documents and told him that the event would be halted until such time as they had been produced. Mr Vildanov testified in the same vein. As to the lawfulness of their actions, all three officials claimed that, as it was not registered with the State as a legal entity, the Chelyabinsk community of Jehovah's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void.

On an unspecified date the prosecutor's office decided not to institute criminal proceedings against the Commissioner and the police officers.

On 11 July 2000 the applicants filed a civil complaint with the Sovietskiy District Court of Chelyabinsk alleging unlawful actions on the part of the Commissioner.

On 13 November 2000 the applicants amended their complaint and joined Mr Tomskiy, Mr Lozovyagin, Mr Vildanov and Mr Kuryshkin, deputy head of the Traktorozavodskiy police department, as co-defendants. The applicants alleged violations of their rights to freedom of religion and freedom of association, as guaranteed both by the Russian Constitution and the Convention.

During the trial the presiding judge did not consent to the use of audio-recording equipment provided by the applicants' lawyers. However, this injunction applied only to advocates and one of the applicants was able to record the trial on a personal audio recorder.

On 25 January 2001 the Sovietskiy District Court of Chelyabinsk gave judgment. It found it established that the Commissioner, Mr Tomskiy, Mr Lozovyagin and Mr Vildanov had arrived at college no. 85 on 16 April on a fact-finding mission to check whether a religious meeting had been taking place there. However, as it had been Mr Kuznetsov who had got up on the stage and announced, in sign language, that the meeting was to end, the District Court found that the applicants had failed to show that the religious meeting had been terminated on the defendants' orders. As regards the assessment of the evidence given by the applicants, the District Court held as follows:

The District Court dismissed the applicants' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides.

The applicants filed a statement of appeal. They pointed to multiple admissions by the Commissioner and the police officers, before the District Court and in their statements to the prosecutor dated 3 May 2000, that they had instructed Mr Kuznetsov to terminate the meeting. They also submitted that the concordant statements of fifteen applicants could not be rejected as those of ‘interested witnesses’ and that the District Court had not specified what the applicants' ‘interest’ had been, given that no claim for damages had been filed.

On 28 June 2001 the Chelyabinsk Regional Court, ruling on an appeal by the applicants, upheld the judgment of 25 January 2001. The Regional Court repeated verbatim the reasoning of the District Court. It did not address the arguments set out in the statement of appeal.

The applicants also complained about the actions of the regional Commissioner to Mr Mironov, Ombudsman of the Russian Federation.

On 1 December 2000 the Ombudsman sent a letter to Mr Ustinov, the Prosecutor General of the Russian Federation. The Ombudsman strongly condemned the use of derogatory terms such as ‘sect’ and ‘totalitarian sect’ in the documents issued by State officials. In its relevant part the letter read as follows:

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 to manifest them in practice.

The State may not interfere with the activities of religious associations provided that they comply with the law (section 4 § 2). State and other public officials may not use their position to foster any specific attitude towards a religion (section 4 § 4).

Religious associations may take the form of either a religious group or a religious organisation (section 6 § 2). A religious group carries on its activities without State registration and without obtaining legal entity status (section 7 § 1). The right to use rented property for religious purposes is conferred only on registered religious organisations; religious groups may only use premises provided by participants (section 22).

Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas, and in other premises made available to religious organisations for these purposes (section 16 § 2).

A court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens' rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2).

The Education Act prohibits structural units of political parties, political and religious movements and organisations from being set up and operated in State and municipal educational establishments and education management bodies (section 1 § 5).

An educational establishment may lease and rent out property. Rental income must be used for educational needs (section 39 § 11).

The Government claimed, firstly, that the applicants had failed to produce — in the domestic proceedings or before this Court — any evidence in support of their allegation that the meeting had been disrupted. In their submission, Mr Kuznetsov, confronted with the request to produce documents demonstrating the lawfulness of the community meeting, realised that ‘the meeting should not be held’ and indicated to the congregation that the meeting should end. The Government also asserted that the founding documents of the Jehovah's Witnesses religious organisations did not provide for the forms of worship mentioned by the applicants — a ‘worship meeting’ or ‘religious meeting’.

The applicants pointed to the overwhelming body of evidence submitted to the domestic courts, including statements by independent witnesses such as the college principal, to the effect that the meeting of their congregation had been disrupted following the arrival of the Commissioner and her aides. There was no requirement in law to demonstrate the lawfulness of the meeting or to show that it was ‘necessary’ or ‘should be held’. In any event, Mr Kuznetsov had never made an admission of the kind alleged by the Government. The Government's attempts to reverse the burden of proof notwithstanding, it was incumbent on the intervening authorities to show that the meeting had been unlawful, which they had been unable and failed to do. As to the form of the meeting in question, the applicants considered that its actual form — be it a rite, ceremony, prayer, hymn or other liturgy — was of no relevance for the legal analysis of the alleged violation.

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. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one's] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001-XII, and Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, § 31).

The Court further reiterates that Article 9 of the Convention protects acts of worship and devotion which are aspects of the practice of a religion or belief in a generally recognised form (see C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, Decisions and Reports 37, p. 142). It is undeniable that the collective study and discussion of religious texts by the members of the religious group of Jehovah's Witnesses was a recognised form of manifestation of their religion in worship and teaching. Thus, the applicants' meeting on 16 April 2000 attracted the protection of Article 9 of the Convention.

The Government claimed that there had been no interference since the applicants had interrupted the meeting on their own initiative, once their attention had been drawn to the fact that they did not have the appropriate documents for holding it. The Court considers that this claim is not borne out by the materials produced before it.

There is nothing in the parties' submissions to indicate that the religious meeting would have been wound up ahead of time had it not been for the arrival of the Commissioner and her aides. The Government did not furnish any alternative explanation or reason for the early termination of the applicants' meeting. The Court therefore considers that there was a causal link between their arrival at the site and the disruption of the meeting.

It is not contested that the command to halt the meeting was given by Mr Kuznetsov, who had gone on stage and indicated, in sign language, that the police wanted the meeting to end (see paragraph 29 above). However, in so doing, he was relaying the demand of the senior police inspector, Mr Lozovyagin, who had told him that the meeting could not be continued without the appropriate documents (see paragraphs 27 and 33 above). It further appears that neither Mr Lozovyagin nor any other person in the Commissioner's team mastered sign language. For that reason they were unable to communicate directly with the audience, which consisted mostly of profoundly deaf applicants. The Court notes the testimony of the applicant Ms Lappo in the domestic proceedings. She is not hearing-impaired and witnessed an exchange between the Commissioner and one of her aides, who claimed to be unable to stop the meeting because the participants were ‘deaf mutes’ (see paragraph 25 above). The Commissioner then told Mr Kuznetsov to disperse the gathering. The Court finds that in these circumstances Mr Kuznetsov merely acted as a medium of communication, passing on the Commissioner's order.

The Court further recalls that the responsibility of a State under the Convention may arise for acts of all its organs, agents and servants, even where their acts are performed without express authorisation and even outside or against instructions (see Wille v. Liechtenstein, no. 28396/95, Commission decision of 27 May 1997, and Ireland v. the United Kingdom, Commission Report of 25 January 1976, Yearbook 19, p. 512 at 758). In the present case the Government did not contest the fact that the Commissioner and the accompanying police inspectors had acted, or pretended to act, in their official capacity. The police officers wore uniforms and were perceived by the applicants as law-enforcement officials. It follows that their actions engaged the State's responsibility.

In sum, the Court finds that there has been interference with the applicants' right to freedom of religion in that, on 16 April 2000, the State officials caused their religious assembly to be terminated ahead of time. It will next examine whether this interference was justified, that is whether it was ‘prescribed by law’, whether it pursued one or more legitimate aims enumerated in paragraph 2 of Article 9 and whether the interference was ‘necessary in a democratic society’.

The Government asserted that the meeting had been attended by hearing-impaired and disabled children without proof of the consent of their parents or legal guardians. The Commissioner asked the police officers to assist her in verifying whether this was the case. In the Government's view, the suspected participation of children had been sufficient justification for the interference, which was ‘prescribed by law’ and necessary for the protection of the health and rights of others.

The Government further alleged that the applicants had no right to use the rented premises for religious purposes. Firstly, religious groups which did not have legal entity status could only use property or premises provided by their members and the lease agreement between the Administrative Centre of the Jehovah's Witnesses in Russia and college no. 85 had therefore been void. Secondly, the Education Act prohibited religious organisations from being set up or operated in State or municipal educational establishments, both during and after school hours, and the lease agreement had therefore been void ab initio because it contravened this absolute prohibition and because it had been signed by the college principal acting ultra vires.

The applicants pointed out that the Government had not disputed that there had been no police documents or authorisation for the raid, that the Commissioner and Mr Tomskiy were civilians and had no legal authority to take part in a police operation and that they had travelled to the college by private car and filmed the events with a private video camera.

The applicants further submitted that the Government's assertion about the presence of children without parental consent was untenable in the light of the facts of the case and unsupported by any evidence. The Commissioner and police officers had never entered the auditorium but had remained in the foyer, so they could not see who was inside. They had only asked Mr Kuznetsov for the documents and never attempted to establish the identity or parentage of the minors present or any other information relating to them, either while the meeting was in progress or after its termination.

In so far as the Government alleged that the lease agreement had been void, the applicants contended that the Government's arguments were factually incorrect and inconsistent. The lease agreement had been signed not by a religious group which did not have legal entity status but by the Administrative Centre of the Jehovah's Witnesses in Russia, that is, the umbrella organisation at national level, which had legal entity status. The Government had failed to specify on the basis of which facts or law the legally binding lease agreement, the terms and mutual obligations of which had been fulfilled by both parties for more than fourteen months, could be rendered void without the intervention of a judicial authority. Indeed, the validity of the agreement on the date in question (16 April 2000) was not contested and the notice of termination had only been served on the following day. Moreover, even assuming that there was a defect in the agreement, this would be a matter inter partes and it would not justify the disruption by a third-party civilian such as the Commissioner of a religious meeting held under the agreement.

Lastly, the applicants challenged the Government's reliance on the Education Act as a misinterpretation of the law. They pointed out that the community had been lawfully using an auditorium outside college hours and without involving college students or staff, whereas the legal provision invoked by the Government referred only to the setting-up of ‘structural units’ of religious organisations.

The parties disagreed as to whether the interference had been ‘prescribed by law’. The Government advanced several legal grounds for the acts of the Commissioner and her aides; the applicants disputed that their acts had had any legal basis. The Court will examine these grounds in turn.

In so far as the Government claimed that the applicants had not had the appropriate documents for holding the religious meeting, the Court observes that the Government never specified the nature of the allegedly missing documents. Furthermore, it notes the consistent case-law of the Russian Supreme Court to the effect that religious assemblies do not require any prior authorisation from, or notification to, the authorities (see paragraph 50 et seq.). It is striking that the police officer Mr Lozovyagin only asked Mr Kuznetsov about his registered home address, but did not specify what other documents he wanted to see (see paragraph 27 above). Although it is in dispute whether Mr Kuznetsov had a valid registered address in Chelyabinsk or in Krasnodar, this issue is obviously of no relevance to the legal ability of the other applicants to hold a service of religious worship. It follows that the Government's allegation that the applicants lacked the appropriate documents for the religious meeting has not been made out.

As regards the validity of the lease agreement, the Court notes at the outset that, contrary to the Government's submission, it was entered into by the organisation of the Jehovah's Witnesses officially registered at national level rather than by the local religious group which did not have legal entity status. The lease had no obvious legal defect and by the date of the events it had been duly fulfilled by both parties for at least fourteen months. By 16 April 2000 there had been no eviction order, no pending court proceedings and no other legal challenges to the validity of the lease agreement. Nor has it been claimed that the administrative order of 31 March 2000 prohibiting colleges from renting out their premises for religious meetings had affected the validity of earlier leases retrospectively. It follows that the applicants had a lawful contractual basis for using the college premises on 16 April 2000.

The Government also claimed that the holding of the meeting on the college premises had been contrary to section 1 § 5 of the Education Act (cited in paragraph 48 above). The Court observes, however, that this ground was not relied upon in the domestic proceedings and that the Government relied on it for the first time in their pleadings before the Court. In any event, it appears that the Education Act expressly authorised educational establishments to rent out their premises (see paragraph 49 above). The provision on which the Government relied did not prohibit the physical use of college space by third parties, but rather the clericalisation of schools through the setting-up of religious structures involving students and/or staff. In the present case the applicants used the college premises for their meetings on Tuesday nights and on Sundays, that is, outside normal college hours, and there is no evidence that their activities interfered in any way with the educational process or involved college students or teachers. Thus, the Education Act could not serve as a legal basis for the interference.

Finally, the Government alleged that the Commissioner, assisted by two police officers and one civilian, had come to the meeting to investigate a complaint about the unauthorised presence of children at a religious event. The Court observes firstly that no evidence — such as, for example, a copy of the complaint or materials from a police investigation — has been produced in support of that contention. Similar allegations by the Commissioner had been examined previously by the Chelyabinsk prosecutors, who had found them unsubstantiated and decided not to institute criminal proceedings (see paragraphs 10–13 above). Furthermore, the course of action adopted by the Commissioner suggests that her purpose was to disrupt the meeting rather than to investigate a complaint of that nature. Had there been a genuine attempt to investigate the matter, the identities of the participants in the meeting should have been established and the presence of children without their parents ascertained. However, the Commissioner and the accompanying officers did neither; they did not enter the hall, but stayed behind in the foyer; the only person who was asked for documents of any kind was the applicant Mr Kuznetsov, and no checks were carried out after the termination of the meeting. Moreover, the only list of participants in the meeting available to the Court is that compiled by the applicants (see the schedule), and no person on that list was younger than nineteen at the material time. It follows that the Government's contention that the Commissioner investigated a complaint is untenable on the facts.

Lastly, the Court observes that the Government did not submit any documents relating to the official powers of the Commissioner and that no such documents were produced in the domestic proceedings. There are, however, strong and concordant indications that she acted without any legal basis in pursuance of her private ends. The involvement of two senior police officers gave her intervention a spurious authority. However, the police officers were not formally subordinate to her and she had no authority to give them orders, such as the one she gave to have the meeting dispersed (see paragraph 60 above). There was no ongoing inquiry of any kind, nor had there been any complaint about disturbance of the public order or any other indication of an offence warranting police involvement. Thus, as the Court has found above, the legal basis for breaking up a religious event conducted on the premises lawfully rented for that purpose was conspicuously lacking. Against that background the Court finds that the interference was not ‘prescribed by law’ and that the Commissioner did not act in good faith and breached a State official's duty of neutrality and impartiality vis-à-vis the applicants' religious congregation (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000-XI). Since the Court has already found that the interference with the applicants' right was not ‘in accordance with the law’, this finding makes it unnecessary to determine whether it pursued a legitimate aim and was necessary in a democratic society (see Gartukayev v. Russia, no. 71933/01, § 21, 13 December 2005).

There has therefore been a violation of Article 9 of the Convention on account of the disruption of the applicants' religious meeting on 16 April 2000 by the Commissioner and her aides. In these circumstances, the Court does not consider it necessary to examine the same events from the standpoint of Articles 8, 10 or 11 of the Convention.