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Acquisition of Legal Personality and Registration

Kimlya, Sultanov and Church of Scientology of Nizhnekamsk v. Russia, 1 October 2009 [ECtHR]

Cases nos. 76836/01 and 32782/03

96. The Government omitted to indicate any legitimate aim which the interference may have pursued. However, when examining the remit of the “fifteen-year-rule”, the Russian Constitutional Court opined that a refusal of legal-entity status to religious associations may, in certain circumstances, be necessary for preventing violations of human rights or commission of illegal acts (see paragraph 59 above).

97. Having regard to the position of the Constitutional Court and to its own case-law in similar cases (see Religionsgemeinschaft der Zeugen Jehovas and Others, § 75, and Metropolitan Church of Bessarabia and Others, § 113, both cited above), the Court is prepared to assume that the interference complained of pursued a legitimate aim, namely that of the protection of public order.

(c) Whether the interference was necessary in a democratic society

98. The Court observes that the groups founded by the first and second applicants and the third applicant were denied registration as religious organisations not because of any alleged shortcoming on their part or any specific feature of their religious creed but rather as a result of the automatic operation of the legal provision which prevented all religious groups that had not existed in a given territory for at least fifteen years from obtaining legal-entity status. It notes that, according to the report on freedom of religion prepared by the OSCE, such a provision was peculiar to the Russian Religions Act and there were no other OSCE participating States that required the lengthy existence of a religious organisation before registration was permitted (see paragraph 68 above). The Government, for their part, did not corroborate their claim that the imposition of similar waiting requirements was “a contemporary legal practice in democratic States” by reference to any comparable legal provisions in any of the member States of the Council of Europe.

99. The Court has recently examined a case in which a religious community of Jehovah's Witnesses was made to wait – for a variety of reasons – for more than twenty years until it could obtain recognition as a legal entity. The Court found that such a prolonged period raised concerns under Article 9 and considered that, given the importance of the right to freedom of religion, there was an obligation on the State authorities to keep the time during which an applicant waited for conferment of legal personality reasonably short. Since the respondent Government had not relied on any “relevant” and “sufficient” reasons justifying the failure to grant legal personality in a prompt fashion, the Court found a violation of Article 9 (see Religionsgemeinschaft der Zeugen Jehovas and Others, cited above, §§ 78-80).

100. In the instant case the Russian Government did not identify any “pressing social need” which the impugned restriction served or any “relevant” and “sufficient” reasons which could justify the lengthy waiting period that a religious organisation had to endure prior to obtaining legal personality. In so far as the Government referred to the Sidiropoulos and Others case (cited above), the Court reiterates that in that case it found a violation of Article 11 of the Convention even though the applicant association had been suspected of harbouring unlawful aims and had been denied registration as a preventive measure. The Court pointed out that “having never existed, the association did not have time to take any action” and that, in any event, the authorities would not have been powerless since a “court could order that the association be dissolved if ... its functioning proved to be contrary to law, morality or public order” (see Sidiropoulos and Others, cited above, § 46).

101. By contrast, at no point in the proceedings in the present case has it been alleged that the applicants – either as individuals or as the religious group – engaged or intended to engage in any unlawful activities or pursued any aims other than worship, teaching, practice and observance of their beliefs. The ground for refusing registration was purely formal and unconnected with their actual functioning. The only “offence” which the applicants have been found guilty of was the intention to seek registration of an association that was “religious in nature” and had not been in existence in the region for at least fifteen years. The Court also observes in this connection that the contested provision of the Religions Act only targeted base-level religious communities that could not show either their presence in a given Russian region or their affiliation with a centralised religious organisation. It appears therefore that only those newly emerging religious groups that did not form part of a strictly hierarchical church structure were affected by the “fifteen-year rule”. The Government did not offer any justification for such differential treatment.

102. In the light of the foregoing considerations, the Court finds that the interference with the applicants' rights to freedom of religion and association cannot be said to have been “necessary in a democratic society”. There has therefore been a violation of Article 9 of the Convention, interpreted in the light of Article 11.

 

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Jurisprudence

Registration Founding meeting Documentation Premises Grounds for refusal Processing applications Fair decision-making Renewal requirements Need for precision in any requirements Name or description Length of existence Delay Opportunity to amend application Judicial control