Постановление Европейского суда по правам человека от 10.06.2010 «Дело Свидетели Иеговы Москвы (jehovah's witnesses of moscow) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF JEHOVAH'S WITNESSES OF MOSCOW v. RUSSIA
(Application No. 302/02)
JUDGMENT*
(Strasbourg, 10.VI.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Jehovah's Witnesses of Moscow v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 20 May 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 302/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the religious community of Jehovah's Witnesses of Moscow and four Russian nationals listed below ("the applicants") on 26 October 2001.

2. The applicants were represented by Mr R. Daniel, barrister of the Bar of England and Wales, Ms G. Krylova and Mr A. Leontyev, Russian lawyers practising in Moscow and St Petersburg respectively, and Mr J. Burns, a member of the Canadian Bar. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged, in particular, a violation of their rights to freedom of religion and association, the right to a hearing within a reasonable time and a breach of the prohibition on discrimination.

4. On 5 June 2003 the Court decided to give notice of the application to the Government. The parties submitted their observations.

5. On 6 January 2005 the Court put additional questions to the parties. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

6. The Court decided, after consulting the parties, that no hearing in the case was required.

THE FACTS
I. The circumstances of the case
A. The applicants
7. The first applicant is the religious community of Jehovah's Witnesses of Moscow ("the applicant community") established in 1992. The other applicants are members of that community. All of them live in Moscow.

8. The second applicant, Mr Ivan Stepanovich Chaykovskiy, was born in 1955. He has been with the Jehovah's Witnesses since 1977 and is a community elder.

9. The third applicant, Mr Igor Vasilievich Denisov, was born in 1961. He has been a member of the applicant community since 1993.

10. The fourth applicant, Mr Stepan Vasilievich Levitskiy, was born in 1925. He was twice convicted in Soviet times - in 1957 and 1980 - for disseminating Jehovah's Witnesses' religious literature and officially rehabilitated in 1992 as a victim of religious persecution.

11. The fifth applicant, Mr Oleg Nikolaevich Marchenko, was born in 1965. He is a third-generation Jehovah's Witness whose grandparents were exiled to Siberia in 1951 under an order deporting Jehovah's Witnesses.

B. Jehovah's Witnesses in Russia
12. Jehovah's Witnesses have been present in Russia since 1891. They were banned soon after the Russian Revolution in 1917 and persecuted in the Soviet Union.

13. After the USSR Law on Freedom of Conscience and Religious Organisations was enacted in 1990, on 27 March 1991 the RSFSR Ministry of Justice registered the charter of the Administrative Centre of The Religious Organisation of Jehovah's Witnesses in the USSR.

14. On 11 December 1992 the Ministry of Justice of the Russian Federation registered the charter of the Administrative Centre of the Regional Religious Organisation of Jehovah's Witnesses.

15. The applicant community, which is the Moscow branch of the Jehovah's Witnesses, obtained legal-entity status on 30 December 1993 from the Moscow City Justice Department. According to its charter, the purpose of the applicant community was "joint profession and dissemination of [their] faith and carrying on religious activity to proclaim the name of God the Jehovah".

C. Criminal investigations
into the Jehovah's Witnesses' activity
16. In 1995 the Committee for the Salvation of Youth from Totalitarian Cults ("the Salvation Committee"), a non-governmental organisation aligned with the Russian Orthodox Church, filed a complaint against the members of the applicant community's management with the Savyolovskiy district prosecutor's office in Moscow. It alleged in particular that Jehovah's Witnesses burdened their followers with exorbitant membership dues that put their families in a financially precarious situation and that they incited hatred toward "traditional" religions.

17. On 11 August 1995 the prosecutor's office refused to institute a criminal investigation, finding no breaches of the community's registered charter, the Constitution or other laws. It was also noted that no complaints from private persons or legal entities concerning the activity of the applicant community had been filed.

18. In 1996 the Salvation Committee complained again and the inquiry into the same allegations was reopened. On 21 April 1997 the prosecutor of the Northern District of Moscow discontinued the investigation. Having heard several Jehovah's Witnesses and completed a study of their literature, the prosecutor found that the applicant community did not cause any harm to the health of citizens or their rights and did not incite citizens to refuse to fulfil their civil duties or commit disorderly acts.

19. Following a third complaint by the Salvation Committee, the prosecutor in charge of supervising compliance with laws on inter-ethnic relations in the General Prosecutor's Office ordered the case to be reopened. On 15 September 1997 an investigator with the prosecutor's office of the Northern District of Moscow again discontinued the investigation. She scrutinised in detail the Salvation Committee's allegations concerning the death of a Jehovah's Witness who had refused a blood transfusion and accusations about alienation of family members resulting from their involvement in the religious activity of the applicant community. The investigator established that no harm allegedly caused by the management of the applicant community to other persons could be proven.

20. Following a fourth complaint lodged by the Salvation Committee, the investigation was reopened on 28 November 1997. The complaint was based on the same allegations as the previous ones. On 28 December 1997 the same investigator discontinued the proceedings for the same reasons as those set out in her earlier decision. In particular, she pointed out that "the Committee for the Salvation of Youth's statements are based upon their active hostility towards this particular religious organisation, whose members they [the Committee] deny the mere possibility of exercising their constitutional rights because of their religious beliefs".

21. The Salvation Committee requested a new investigation for the fifth time. The Moscow City prosecutor's office reopened the case and assigned it to another investigator on 20 March 1998.

22. On 13 April 1998 the new investigator, in charge of particularly important cases in the Northern District of Moscow, terminated the criminal proceedings. Her findings in respect of substantially the same allegations were different, however. She found that Jehovah's Witnesses alienated their followers from their families, intimidated believers and controlled their mind, as well as inciting them to civil disobedience and religious discord. The investigator pointed out that the community acted in breach of Russian and international laws, but that no criminal offence could be established. Accordingly, she discontinued the criminal case but recommended that the prosecutor of the Northern District of Moscow lodge a civil action for the applicant community to be dissolved and its activity banned.

D. First set of civil dissolution proceedings
against the applicant community
23. On 23 April 1998 the prosecutor of the Northern Administrative District of Moscow filed a civil action for the applicant community to be dissolved and its activity banned. The prosecutor's charges against the applicant community were: (i) incitement to religious discord; (ii) coercion into destroying the family; (iii) encouragement of suicide or refusal on religious grounds of medical assistance to persons in life- or health-threatening conditions; (iv) infringement of rights and freedoms of citizens; and (v) luring teenagers and minors into the religious organisation.

24. On 29 September 1998 hearings before the Golovinskiy District Court of Moscow began. The presiding judge admitted several new witnesses for the prosecution and allowed the Salvation Committee to take part in the proceedings as a third party on the ground that it "defends the rights of citizens", overruling an objection by the defence.

25. On 18 November 1998 the hearing was adjourned to February 1999 because the prosecutor was not ready.

26. On 15 January 1999 the prosecutor filed a supplementary action based on the same allegations and corroborated by references to quotations from the religious literature of Jehovah's Witnesses.

27. On 9 February 1999 the proceedings resumed. The judge reversed her previous decision and, on a request by the defence, removed the Salvation Committee as third party in the case. The court proceeded to hear witnesses and experts.

28. On 12 March 1999 the court stayed the proceedings. The judge found that contradictions between the expert opinions submitted by the parties could not be resolved and ordered a new expert study of the applicant community's religious beliefs. The court appointed five experts - two in religious studies, two in linguistics and one in psychology - and asked them whether the literature or materials of Jehovah's Witnesses contained indications of incitement to religious discord, coercion into destroying the family or infringements of the rights and freedoms of others. The source material for the study included two volumes of evidence in the civil case, literature and documents of Jehovah's Witnesses, and the Synodal translation of the Bible.

29. On 4 October 2000 the five-expert composite study was completed. On 9 February 2001 the proceedings resumed and on 15 July 2001 the District Court gave judgment.

30. The Golovinskiy District Court heard over forty witnesses and experts and examined religious literature and documents. It scrutinised the experts' report and took their oral testimony. A fifteen-page report by four experts endorsed the prosecutor's allegations, while the fifth expert dissented in a refutation of 139 pages. The court noted that he was the only expert who had ever observed "how Jehovah's Witnesses carry out their preaching work in different countries", while the four other experts "confirmed that they did not examine anyone belonging to the indicated group [Jehovah's Witnesses or potential members of Jehovah's Witnesses]". As to the four experts' conclusions, the court also stated:

"However, not one of the experts, including... [the] psychologist, could explain to the court on the basis of what objective information or research they came to this conclusion regarding the influence of the literature of Jehovah's Witnesses on people's perceptions.

It is simply the experts' appraisal of this particular religious organisation and is not supported by any actual facts showing incitement to religious discord, infringements of the personality and rights and freedoms of citizens, etc."
31. The District Court also referred to the conclusions of an expert examination of 15 April 1999 performed by the Expert Council for State Expert Examinations in Religious Studies at the Ministry of Justice. The examination, which was carried out at the request of the Ministry of Justice for the purpose of granting re-registration to the Administrative Centre of the Jehovah's Witnesses in Russia, found, with certain minor reservations concerning blood transfusion, that Jehovah's Witnesses' teachings inflicted no harm on citizens. The District Court also had regard to the fact that in 1998 - 2000 over 350 religious entities of Jehovah's Witnesses had obtained State registration in other Russian regions.

32. The District Court assessed the allegations advanced by the prosecutor and found that none of them had been based on any objectively verifiable facts. The court's examination of testimony by the prosecutor's witnesses who spoke in support of the allegation of coercion into destroying the family established that "the testimonies simply show the stand relatives take when a member of their family becomes a Jehovah's Witness and when it is unacceptable from the relatives' standpoint".

33. The District Court determined that the other allegations were likewise unfounded:

"Facts indicating deliberate incitement to religious discord, discrimination, hostility or violence, coercion into destroying the family, infringements of the personality and rights and freedoms of citizens... were not adduced by the prosecutor or established by the court...

...[T]he court came to the conclusion that there is no basis for the dissolution and banning of the activity of the religious community of Jehovah's Witnesses in Moscow, since it has not been established that this community in Moscow violates the Russian Constitution or Russian laws, incites religious discord, coerces members into destroying the family, infringes the personality or rights or freedoms of citizens, encourages [others] to commit suicide or to refuse medical care for individuals who are in a life- or health-threatening condition for religious reasons."
34. On an appeal by the prosecutor, on 30 May 2001 the Moscow City Court quashed the judgment of 15 July 2001 and remitted the claim for a fresh examination by a different bench. The City Court held that the District Court had not properly assessed the circumstances of the case and that it should have ordered a new expert study in order to elucidate differences between the existing expert opinions.

E. Attempts to obtain re-registration
of the applicant community
35. On 1 October 1997 a new Law on Freedom of Conscience and Religious Associations