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Acquisition of Legal Personality and Registration

Malakhovsky and Pikul v Belarus, 26 July 2005 [HRC]

Case no 1207/2003

2.1 The authors are members of the Minsk Vaishnava community (community of Krishna consciousness), one of seven such communities registered in Belarus. The applicable law distinguishes between a registered religious community and a registered religious association. The authors state that certain activities which are essential to the practice of their religion may only be undertaken by a religious association. According to the domestic statute on ‘freedom of conscience and religious organizations’ (‘the Statute’), and the Decree of the Council of Ministers on ‘approval of invitation of foreign clerics and their activity in Belarus’ (‘the Decree’), only religious associations are entitled to establish monasteries, religious congregations, religious missions and spiritual educational institutions, or invite foreign clerics to visit the country for the purposes of preaching or conducting other religious activity. 

2.2 On 10 May 2001, the authors filed an application with the Committee on Religions and Nationalities (‘the C.R.N.’), seeking the registration of the seven Krishna communities in Belarus as a religious association. The application included a draft statute  and other pertinent documentation required by law, including documents identifying an officially approved ‘legal address’ of the association, 11 Pavlova Street, Minsk, which satisfied all relevant requirements under the Housing Code, including regulations regarding fire and sanitation facilities.

2.3 On 5 June 2001, the C.R.N. returned these documents with a direction that certain changes be made. The authors resubmitted the documents, but on 27 July 2001, they were returned again with a direction for further changes. On each occasion, most of the required changes were not based on applicable laws, and appeared to reflect the personal views of the officials processing the application. The authors submitted the documents for a third time on 11 August 2001. 

2.4 Although the Statute required the authors’ application to be determined within one month, a period of over a year elapsed after the documents were initially filed, without any decision from the C.R.N.. On 30 May 2002, the authors filed an application in the Central Court of Minsk seeking an order to direct the C.R.N. to determine their application. On 4 July 2002, the Court issued an order requiring the C.R.N. to decide on the authors’ application within a month. 

2.5 On 2 August 2002, the C.R.N. refused the authors’ application, on the ground that they had not provided a proper legal address. It found that the earlier decision of the Central Regional Administration of the City of Minsk  to approve the legal address for the religious association was invalid, as it had been based on an earlier decision of the Minsk City Executive Committee, which, by virtue of another law, did not apply to the registration of religious organizations. 

2.6 As a result of the C.R.N.’s refusal to register the association, members of the seven Krishna communities, including the authors, have been deprived of the right to establish spiritual educational institutions to train their priests, making it impossible to support religious doctrine appropriately. They cannot invite foreign priests to visit the country, resulting in a decline of spiritual standards due to their inability to associate with more spiritually advanced believers. They have also been unable to create monasteries and missions, for the purpose of realizing certain essential tenets of their religion. 

2.7 On 24 September 2002, the authors appealed the C.R.N.’s refusal to register the association in the Central District Court of Minsk; the appeal was dismissed on 18 October 2002. On 29 October 2002, they filed a cassation appeal in the Minsk City Court; the appeal was dismissed on 28 November 2002. On 21 December 2002, the authors filed an application for supervisory review with the President of the Minsk City Court; this was dismissed on 17 February 2003. On 14 April 2003, they filed an application for supervisory review in the Supreme Court of Belarus; this was dismissed on 30 May 2003. The grounds for the dismissal of the appeals were twofold: first, the absence of a proper legal address, for the reasons mentioned in the C.R.N.’s decision (paragraph 2.5 above); secondly, the premises did not comply with the requirements of the Housing Code, as several violations of sanitary and fire safety measures had been identified. 

2.8 The authors submit that that the decision of the administrative body to approve the legal address of their association was never set aside, and remains in force. They acknowledge that the earlier decision of the Minsk City Executive Committee, on which the decision to approve their legal address was based, was not applicable to the registration of religious bodies, but argue that it was simply irrelevant, and that the premises only needed to comply with relevant provisions of the Housing Code, which it did. As to concerns about the fire safety and sanitation facilities of the premises, the authors note that the building is residential, that people are living in it, and that it cannot be argued that the building is safe for these residents but unsafe for their organization.

2.9 The authors submit that amendments to the Statute adopted on 31 October 2002 make it even more difficult to have a religious association registered. The Statute now requires that an association be comprised of at least 10 religious communities, of which at least one must have conducted its activities in Belarus for not less than 20 years. (...)

7.2 In relation to the authors’ claim under article 18, paragraphs 1 and 3, the Committee recalls its General Comment No 22, which states that article 18 does not permit any limitation whatsoever on freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice [General Comment 22, paragraph 3]. By contrast, the right to freedom to manifest one’s religion or beliefs may be subject to certain limitations, but only those prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. Further, the right to freedom to manifest one’s beliefs in worship, observance, practice and teaching encompasses a broad range of acts, including those integral to the conduct by the religious group of its basic affairs, such as the freedom to choose religious leaders, priests, and teachers, and the freedom to establish seminaries or religious schools [General Comment 22, paragraph 4]. In the present case, the Committee notes that the State party’s law distinguishes between religious communities and religious associations, and that the possibility of conducting certain activities is restricted to the latter. Not having been granted the status of a religious association, the authors and their fellow believers cannot invite foreign clerics to visit the country, or establish monasteries or educational institutions. Consistent with its General Comment, the Committee considers that these activities form part of the authors’ right to manifest their beliefs. 

7.3 The Committee must now address the question of whether the relevant limitations on the authors’ right to manifest their religion are ‘necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others’, within the meaning of article 18, paragraph 3, of the Covenant. The Committee recalls its General Comment No 22, which states that paragraph 3 of article 18 is to be interpreted strictly, and that limitations may only be applied for those purposes for which they are prescribed and must be directly related to and proportionate to the specific need on which they are predicated [General Comment 22, paragraph 8]. 

7.4 In the present case, the limitations placed on the authors’ right to manifest their belief consist of several conditions which attach to the registration of a religious association. One of  the criteria which the authors’ application for registration did not meet  was the requirement to have an approved legal address, which satisfied certain health and fire safety standards necessary for premises used for purposes such as religious ceremonies.  These limitations must be assessed in the light of the consequences which arise for the authors and their religious association. 

7.5 The Committee considers that the precondition, whereby a religious association’s right to carry out its religious activities is predicated on it having the use of premises which satisfy relevant public health and safety standards, is a limitation which is necessary for public safety, and proportionate to this need. 

7.6 The Committee notes, however, that the State party has not advanced any argument as to why it is necessary for the purposes of article 18, paragraph 3, for a religious association, in order to be registered, to have an approved legal address which not only meets the standards required for the administrative seat of the association but also those necessary for premises used for purposes of religious ceremonies, rituals, and other group undertakings. Appropriate premises for such use could be obtained subsequent to registration. The Committee also notes that the argument of the State party in its comments on the communication that the authors’ community sought to monopolize representation of Vishnuism in Belarus did not form part of the domestic proceedings. Also taking into account the consequences of refusal of registration, namely the impossibility of carrying out such activities as establishing educational institutions and inviting foreign religious dignitaries to visit the country, the Committee concludes that the refusal to register amounts to a limitation  of the authors’ right to manifest their religion under article 18, paragraph 1 that is disproportionate and so does  not meet the requirements of  article 18, paragraph 3. The authors’ rights under article 18, paragraph 1 have therefore been violated. 

7.7 In light of the above, the Committee does not consider it necessary to consider the authors’ claims of a violation of their rights under article 22 of the Covenant. 

8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations of article 18, paragraphs 1 and 3,  of the Covenant. 

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