AS TO THE ADMISSIBILITY OF
Application no. 18147/02
by CHURCH OF SCIENTOLOGY MOSCOW and Others
The European Court of Human Rights (First Section), sitting on 28 October 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 24 April 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant is the Church of Scientology of the city of Moscow (“the applicant church”). The second and third applicants, Mr Anton Yurievich Lychkin and Ms Kseniya Valentinovna Karasyuk, are Russian nationals who were born in 1971 and 1981, respectively, and live in Moscow. The second applicant is the president of the applicant church and the third applicant is a co-founder of the applicant church. The applicants are represented before the Court by Mr P. Hodkin, a lawyer practising in East Grinstead, the United Kingdom, and Ms G. Krylova and Mr M. Kuzmichev, lawyers practising in Moscow.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 January 1994 the applicant church was officially registered as a religious association under the Russian Soviet Federalist Socialist Republic Law on the Freedom of Religion of 25 October 1990.
On 1 October 1997 the new federal law “on the freedom of conscience and religious associations” (“the Law”) came into force. Section 27 of the Law required all religious organisations to bring their founding documents into compliance with the Law and to apply for re-registration.
On 6 April 1998 the Rules for processing applications for State registration of religious organisations in departments of justice of the Russian Federation came into effect (order no. 19 of the Ministry of Justice). After that date it became possible for existing religious organisations to apply for re-registration under section 27 § 4 of the Law.
1. Attempts to obtain State re-registration
On 11 August 1998 the applicant church submitted to the Moscow Justice Department an application for re-registration, together with the documents required by the Law.
On 1 June 1999 the Moscow Justice Department refused state re-registration of the applicant church on the ground that the purpose and activity of the applicant church contradicted the requirements of the Law and violated the Criminal Code as there was an on-going criminal investigation against the then President of the applicant church. The applicants submit that this investigation was subsequently closed in the absence of indications of a criminal offence.
On 29 December 1999 the applicant church submitted its second application for re-registration.
On 28 January 2000 Mr Zhbankov, deputy head of the Moscow Justice Department, informed the applicants that their second application had been refused. He alleged that the applicants had adopted a “new version of the Charter”, rather than “amendments to the Charter”, and had indicated that by the charter the applicant church “may have”, instead of “shall be entitled to have”, attached representative offices of foreign religious organisations. He also alleged other violations of the Russian laws, without specifying them.
On 10 February 2000 the then president of the applicant church sent a letter to the Moscow Justice Department inviting them to indicate specific violations. He relied on the requirement in section 12.2 of the Law, pursuant to which the grounds for a refusal were to be set out explicitly.
By a letter of 18 February 2000, Mr Zhbankov responded to the applicants that the Moscow Justice Department was under no obligation to clarify or review charters or other documents and it could only carry out legal evaluation of the submitted documents and give a decision either to grant or to refuse re-registration.
On 30 May 2000, having taken further steps to remedy any supposed defects in the documents, the applicant church submitted its third application for registration.
On 29 June 2000 Mr Zhbankov informed the applicants that their application had been “left without examination” (i.e. it had not been processed) because they had submitted an incomplete set of documents. Following a written enquiry of the applicant church of 12 July 2000 as to what documents were missing, Mr Zhbankov informed the applicants on 17 July 2000 that his Department was not competent to indicate what information was missing and what additional documents were to be submitted.
On 17 July 2000 the applicant church submitted to the Moscow Justice Department a fourth, more detailed application for re-registration.
On 19 August 2000 Mr Zhbankov informed the president of the applicant church that the application was “left without examination” because they had allegedly submitted an incomplete set of documents contrary to section 11.9 of the Law.
On 10 October 2000 the applicant church submitted a fifth, yet more detailed application.
On 9 November 2000 Mr Zhbankov repeated that the applicant church had submitted an incomplete set of documents and the application had been “left without examination”.
On 31 December 2000 the time-limit for State re-registration of religious organisations set by the Law expired.
2. Proceedings before courts
(a) First examination of the complaint against the Justice Department
The second and third applicants brought a complaint before the Nikulinskiy District Court of Moscow against the Moscow Justice Department's refusal to re-register the applicant church.
On 8 December 2000 the Nikulinskiy District Court of Moscow gave its decision. No representative of the Moscow Justice Department appeared at the hearing.
The court held that the refusal of 28 January 2000 had not had any basis in law. It established that the wordings challenged by the Moscow Justice Department were in fact identical to those contained in the Law and determined that religious associations “shall not be required to reproduce the text of the law verbatim in their charter”. The court indicated that the Moscow Justice Department could have suggested an editorial revision of the charter without refusing the application as a whole.
The court further ruled that the refusal of 29 June 2000 had not been lawful, either. The court established that all documents required by section 11 of the Law had been appended to the application with the exception of a document confirming the existence of the religious group in the given territory for no less than fifteen years or confirming its incorporation as a centralised religious organisation. However, the court noted that such document was not necessary because, pursuant to the rulings of the Constitutional Court, religious organisations established before the adoption of the Law were exempted from this requirement.
The court concluded that the Moscow Justice Department had been “in essence, using subterfuges to avoid re-registration [of the applicant church]”. The court pointed out that such avoidance or refusals had violated the rights of the plaintiffs and their fellow believers guaranteed by Article 29 and 30 of the Russian Constitution because the parishioners whose association had no legal entity status would not be able to rent premises for religious ceremonies and worship, to receive and disseminate religious literature, to have bank accounts, etc. The court also held that the refusal had been inconsistent with international standards of law, including Articles 9 and 11 of the European Convention and Article 18 of the International Covenant on Civil and Political Rights (the right to freedom of religion or belief). The court acknowledged that the actions of the Moscow Justice Department had violated Principle 16.3 of the 1989 Vienna Concluding Document of the Organisation for Security and Co-operation in Europe, which provides that, in order to ensure individual freedom of religion or belief, the participating States “will grant upon their request to communities of believers, practising or prepared to practice their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries”. Finally, the court referred to Article 7 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and held that “the refusal to grant legal entity status to a religious entity imposes a practical restriction on the right of each person to profess his/her religion in community with others”. The court concluded as follows:
“Hence, the justice authorities' avoidance of re-registration of the Church of Scientology of Moscow under far-fetched pretexts contradicts the above mentioned laws of the Russian Federation and international law.”
The court declared the refusal of 29 June 2000 unlawful and required the Moscow Justice Department to re-register the applicant church.
The Moscow Justice Department did not appeal against this decision and it became final on 19 December 2000. However, the Moscow Justice Department refused to comply with it.
On 27 December 2000 the second and third applicants obtained a writ of execution (исполнительный лист) from the Nikulinskiy District Court of Moscow.
On 4 January 2001 the applicant church submitted its sixth application along with the writ of execution mandating re-registration.
On 2 February 2001 Mr Zhbankov left the application “without examination”, repeating that the applicants had submitted an incomplete set of documents contrary to section 11 § 9 of the Law. No clarification as to the allegedly missing document(s) was given.
(b) Supervisory review proceedings and a new determination
On an unspecified date the Moscow Justice Department requested the Moscow city prosecutor to lodge an application for supervisory review of the final decision (протест в порядке надзора) which he did.
The prosecutor's application was granted by the Presidium of the Moscow City Court. On 29 March 2001 it quashed the decision of 8 December 2000 and remitted the case for a fresh examination. In doing so, the court invoked the following grounds. Concerning the lawfulness of the refusal of 28 January 2000, the Presidium criticised the first instance court for its failure to verify the compliance of the amendments to the charter submitted for re-registration on 29 December 1999 with the law. As to the refusal of 29 June 2000, the Presidium found that the book Scientology: The Theology and Practice of a Contemporary Religion (Russian edition) did not provide sufficient information on the basic tenets of creed and practices of the religion as required by section 11.5 of the Law and, therefore, the set of documents was incomplete. Having reviewed some documents attached to the application for supervisory review (not made available to the applicants), the court found that the Moscow Justice Department had repeatedly requested the Moscow City Administration to subject the applicant church to a State expert examination in religious studies, however, such examination was refused because of insufficient funding.
On 8 June 2001 the Supreme Court of the Russian Federation dismissed the applicant's application for supervisory review of the Presidium's decision of 29 March 2001.
On 7 August 2001 the Nikulinskiy District Court of Moscow gave a new decision. The court ruled in favour of the Moscow Justice Department and dismissed the applicants' complaint about the refusal to re-register the applicant church. The court found that the applicant church had not complied with section 11 of the Law in that (i) the application for re-registration only included copies, and not originals, of the charter and registration certificate; (ii) the book submitted by the applicant church did not qualify to be the “information on the basic tenets of creed and practices of the religion”, and (iii) the document indicating the legal address of the applicant church was missing.
Before the court the applicants unsuccessfully argued that the Moscow Justice Department had had in its possession the original charter and registration certificate, as well as the applicant church's legal address, as these documents had been included in the first application for re-registration and the Moscow Justice Department had never returned them. The court concluded, nevertheless, that “the fact that some documents were [physically] in the building of the Department did not relieve the applicants of the obligation to submit a complete set of documents for registration”. The court affirmed that “all required documents were to be submitted simultaneously”. The applicants also contend that the court cannot have examined the book on the basic tenets of their religion, because, in their opinion, the book did contain all the information required by the Law.
On 26 October 2001 the Civil Section of the Moscow City Court upheld on the applicants' appeal the judgment of 7 August 2001.
On 16 January 2002 the applicants submitted their seventh application for re-registration. In observance with the domestic courts' judgments the application included (i) the original charter and registration certificate; (ii) “information about the basic tenets of creed and practices” in the form of a four-page document instead of a book; and (iii) a new document confirming the legal address.
On 23 January 2002 Mr Syomin, new deputy head of the Moscow Justice Department, left the application “without examination” because the time-limit for re-registration set out in section 27 § 4 of the Law had expired and an civil action for the applicant church's dissolution (see below) was pending before a district court.
(c) Action for dissolution
Relying on that judgment whereby the refusal to re-register the applicant church was upheld, the Moscow Justice Department filed a civil action for dissolution of the applicant church.
On 30 April 2002 the Nikulinskiy District Court of Moscow found that the case was governed by the ruling of the Constitutional Court of the Russian Federation of 7 February 2002. The court referred to that ruling to determine that the action should be dismissed.
On 18 July 2002 the Civil Chamber of the Moscow City Court upheld on the prosecutor's appeal the decision of 30 April 2002.
3. Further attempts to secure re-registration
On 1 July 2002 the system for State registration of legal entities was reformed. A new Unified State Register of Legal Entities was established and the competence to make entries was delegated to the Ministry of Taxes and Duties (Tax Ministry). However, in respect of religious organisations a special procedure was retained, under which the regional departments of the Ministry of Justice would still make the decision of whether to register a religious organisation, whilst formal processing of the approved application would pass to the Tax Ministry. All existing legal entities were required to provide to local tax authorities certain updated information about themselves by 31 December 2002.
On 11 July 2002 the applicant church submitted its eighth application for re-registration to the Moscow Justice Department, under the new procedure.
On 9 August 2002 the Moscow Justice Department again left the application “without examination”, repeating that re-registration was no longer possible due to expiry of the time-limit set in section 27 § 4 of the Law.
On 24 September 2002, after the Moscow City Court upheld the judgment refusing termination of the applicant church's legal entity status, the applicants submitted their ninth application for re-registration. On the same day it also submitted the updated information required under the new procedure, to the local registering tax authority, Moscow interdistrict tax inspectorate no. 39.
On 2 October 2002 Mr Buksman, head of the Moscow Justice Department, responded to a letter from the second applicant of 2 September 2002 in the following terms:
“...a situation exits when, on one hand, the action of the [Moscow Justice Department] seeking dissolution of your religious organisation has been refused, and, on the other hand, the very same court has upheld as lawful our decisions to leave the applications and documents for re-registration of this organisation without examination, whereas the time-limit for re-registration established by law has expired.”
On 23 October 2002 the Moscow Justice Department left the ninth application “without examination”, referring to the above letter from Mr Buksman and stating, as before, that the time-limit had passed.
On 29 October 2002 tax inspectorate no. 39 entered the applicant church on the Unified State Register of Legal Entities and issued the registration certificate.
On 24 December 2002 the applicant church submitted a tenth application for re-registration, attaching the registration certificate.
On 24 January 2003 the Moscow Justice Department left the tenth application without examination, repeating once again that the time-limit had expired.
4. New proceedings before the courts
On 24 April 2003 the applicant church lodged a complaint against the Moscow Justice Department's persistent refusal to re-register the applicant church under the Law. It argued, in particular, that the actions of the Moscow Justice Department constituted a breach of the rights to freedom of religion and association of the applicant church and its members. It submitted a copy of the registration certificate of 29 October 2002 and relied on the ruling of the Constitutional Court of 7 February 2002.
After several adjournments due to the Moscow Justice Department's failure to appear, on 1 September 2003 the Presnenskiy District Court of Moscow dismissed the complaint. The court held that the Law did not provide for a possibility to re-register religious organisations that had missed the time-limit for re-registration.
On 22 January 2004 the Moscow City Court quashed the judgment of 1 September 2003 and remitted the case. It held:
“...failure to re-register within the established time-limit cannot in itself serve as a basis... for refusal to register amendments to the charter... of a religious organisation upon expiry of the established time-limit...
Refusal of registration of amendments to the founding documents of a religious organisation restricts the rights of the organisation, and, as a consequence, those of its members, to determine independently the legal conditions of its existence and functioning.”
Following two adjournments of the proceedings due to the Moscow Justice Department's failure to appear, the matter is now pending before the Presnenskiy District Court of Moscow.
5. Other developments
On 2 September 2003 the Ministry for the Press, Tele/Radio Communications and Mass Communication refused to grant an application of the applicant church of 1 July 2003 seeking registration of its newspaper Religion, Law and Freedom. The decision cited no legal grounds for the refusal and read as follows:
“We report, that after the court proceedings between [the applicant church] and [the Moscow Justice Department] have completed (i.e. after the judgment has entered into legal force), this organisation may apply again for registration of the newspaper Religion, Law and Freedom.”
It does not appear that the applicants challenged the refusal to a court.
B. Relevant domestic law
For a summary of relevant provisions see Moscow Branch of The Salvation Army v. Russia (dec.), no. 72881/01, 24 June 2004.
1. The applicants complain under Article 6 § 1 of the Convention that they were denied the right to a fair, final judgment within a reasonable time. Referring to Brumărescu v. Romania, the applicants allege a violation of the principle of legal certainty in that the Presidium of the Moscow City Court used its supervisory power to quash the final decision that entered into legal force and in respect of which a writ of execution was issued.
2. Under Article 11 of the Convention the applicants allege a violation of their right to freedom of association. They complain that they were unable to secure legal entity status of the applicant church as a result of arbitrary and unjustified refusals of the Moscow Justice Department.
3. Under Article 9 of the Convention the applicants complain that the refusal to grant legal entity status to the applicant church has severely restricted and impaired their ability to exercise their right to freedom of religion as pursuant to the Law only duly registered religious organisations may enjoy a wide range of civil rights that are indispensable to their freedom to manifest religion (such as building places of worship, disseminating religious literature, etc.)
4. Under Article 10 of the Convention the applicants complain that, having been refused legal entity status of the applicant church, they are prevented from disseminating religious literature and inviting foreign nationals to attend their services and preach to them, which amounts to a violation of their right to receive information.
5. The applicants complain under Article 14 of the Convention, read alone or in conjunction with Articles 9, 10 and 11, that they were subjected to discriminatory treatment and the applicant church was refused re-registration on prejudicial pretexts which were never used to thwart re-registration of Orthodox and established religious associations.
1. The applicants complained under Article 6 § 1 of the Convention about the quashing of a final judgment by way of supervisory-review proceedings. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court recalls that the quashing of a final judgment by way of supervisory-review proceedings may raise an issue under Article 6 § 1 (see Ryabykh v. Russia, no. 52854/99, § 55, ECHR 2003-X). It notes, however, that the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails the re-opening of the proceedings (see Sardin v. Russia (dec.), no. 69582/01, 12 February 2004). In the instant case the quashing occurred on 29 March 2001, i.e. more than six months before the application was lodged on 24 April 2002.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicants complained under Articles 9, 10, 11 and 14 of the Convention that the applicant church had been arbitrarily stripped of its legal entity status as a result of the refusal to re-register it as a religious organisation. 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 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others...”
Article 11 provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others...
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...”
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 ... religion, political or other opinion ... or other status.”
Arguments by the parties
Submissions by the Government
The Government consider that there was no interference with the applicants' freedom of association because at present the applicant church is a legitimate religious organisation possessing the full capacity of a legal entity. On 10 August 2002 the applicant church was entered on the Unified State Register of Legal Entities and it now continues its activities. In refusing the Moscow Justice Department's action for dissolution, the Nikulinskiy District Court of Moscow based its judgment of 30 April 2002 on the evidence showing that the applicant church had on-going financial and economic activities, such as the applicant church's balance sheets and permission to stage events issued in municipal districts of Moscow. In the Government's view, the applicant church cannot claim to be a “victim” only because it is not willing to bring its founding documents in compliance with the applicable Russian laws.
The Government further submit that there was no violation of the applicants' right to freedom of religion and no restriction on that right. The penalty imposed on the applicants “was not harsh and was not motivated by religious factors, but by a failure to submit to the Law and violation of administrative procedure”. They claim that the applicants failed to substantiate their allegations about a violation of their right to freedom of conscience and religion.
Finally, justifying the judgment of 7 August 2001, the Government state that the decision to leave the application for re-registration “without examination” because the applicant church had provided an incomplete set of documents had had “a lawful basis” and therefore the applicant church is not precluded from lodging a new application for re-registration. In the Government's opinion, the existence of such a possibility demonstrates that the applicants were not discriminated against.
Submissions by the applicants
The applicants aver that the Government's assertions that the applicant church “possessed the full capacity as a legal entity” and that it “exercised financial, economic and other activity in full measure” are false. The result of the obstruction of the Moscow Justice Department, as upheld by the Presnenskiy District Court on 1 September 2003, is that the applicant church has been “frozen in time” and permanently deprived of a possibility to modify its founding documents (and, accordingly, its aims, structure and internal organisation) in accordance with the law and its changing needs. For example, the applicant church has been barred from introducing into its charter the right to establish places of worship and new procedures for election and dismissal of its president. Furthermore, the Press Ministry denied registration of its newspaper for no other reason than the on-going uncertainty as regards the applicant church's rights created by the refusal of re-registration. In this context, the applicant church's entry on the Unified State Register of Legal Entities was made due to internal administrative reforms and did not constitute re-registration for the purposes of the law.
The applicants further contend that the Government's contention about their “unwillingness” to amend the founding documents is, at best, disingenuous. Having submitted ten applications for re-registration to the Moscow Justice Department, the applicants have not once refused to comply with the requirements imposed on them, whether “prescribed by law” or otherwise. The expiry of the time-limit without re-registration was directly linked to the Moscow Justice Department's persistent refusal to give any concrete explanation for rejection of applications. Furthermore, its refusal to comply with a writ of execution was a particularly serious abuse in that the Ministry of Justice is itself in charge of the court bailiffs service and enforcement proceedings. No “convincing and compelling” reasons have been given by the Government for the on-going refusal to re-register the applicant church, while the grounds relied upon in the judgment of 7 August 2001 were not “prescribed by law” as the law required neither simultaneous production of the documents nor any special form in which the information on “basic tenets of creed” was to be submitted.
Finally, as regards the Government's claim that “the applicant church is not precluded from an opportunity to submit” a new application for re-registration and that this “goes to prove that there is no discrimination”, it is, in the applicants' opinion, misleading and contrary to the facts. A presumed “opportunity to apply” is meaningless when the Moscow Justice Department has held – on at least five occasions in the 19 months preceding the submission of the Government's observations – that the applicant church is permanently barred from re-registering ever again due to the expired time-limit for re-registration. The applicants submit that even the most dispassionate review of the facts discloses a single-minded determination on the part of the respondent State to deny re-registration to specific religious organisations, including the applicant church, despite the lack of any “objective and reasonable justification” for doing so.
The Court's assessment
Admissibility of the complaints introduced by individual applicants
As regards the second and third applicants, the Court observes that it may only receive applications from persons who claim themselves to be victims of a violation of the rights set forth in the Convention. However, in the present case the Court finds that the individual applicants complain of the domestic authorities' refusal to grant re-registration to the applicant church and of the resulting interference with the applicant church's rights to freedom of religion, expression and association. It has not been argued that the applicant church lacks capacity to lodge an application with this Court.
Accordingly, the Court finds that the second
and third applicants cannot themselves claim to be victims of a violation
resulting from the domestic authorities' actions which affect only the
applicant church as such (see
The Holy Monasteries v. Greece, nos. 13092/87 and 13984/88, Commission decision of 5 June 1990).
It follows that as far as introduced by the second and third applicants this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
Admissibility of the complaint introduced by the applicant church
As far as the complaint is introduced by the applicant church, the Court considers, in the light of the parties' submissions, that it raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant church's complaint about the domestic authorities' refusal of its application for re-registration as a legal entity;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA DECISION
CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA DECISION