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Acquisition of Legal Personality and Registration

Church of Scientology Moscow v Russia, 5 April 2007 [ECtHR]

Case no 18147/02

88. The Court observes that the grounds for refusing re-registration of the applicant were not consistent throughout the time it attempted to secure re-registration. The first application was rejected by reference to on-going criminal proceedings against the church president and the second one for textual discrepancies between the charter and the Religions Act (see paragraphs 9 and 11 above). The third to sixth applications were not processed for a failure to submit a complete set of documents and that ground was also endorsed by the District and City Courts (see paragraphs 15, 17, 19, and 28 above). The expiry of the time-limit for re-registration was invoked as the ground for leaving the seventh to tenth applications unexamined. After the courts determined that the refusal to examine the amended charter had had no lawful basis, the Justice Department refused the eleventh application on a new ground, notably the failure to produce a document showing the applicant's presence in Moscow for at least fifteen years (see paragraph 51 above).

89. The justification for the interference advanced by the Government focussed on the findings of the District Court, as upheld on appeal by the City Court, which determined that the applicant failed to submit certain documents and sufficient information on its religious creed.

90. Since the existence of concurrent criminal proceedings and textual discrepancies between the text of the Religions Act and the applicant's charter were not identified by the domestic courts as valid grounds for refusal of re-registration, the Court will first examine the arguments relating to the submission of the allegedly incomplete set of documents.

91. The Court observes that the Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents (see paragraphs 15, 17, 19 and 28 above). However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so (see paragraph 15 above). The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for re-registration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. Consequently, the Court considers that that ground for refusal was not “in accordance with the law”.

92. Examining the applicant's complaint for a second time, the District Court advanced more specific reasons for the refusal, the first of them being a failure to produce the original charter, registration certificate and the document indicating the legal address (see paragraph 30 above). With regard to this ground the Court notes that the Religions Act contained an exhaustive list of documents that were to accompany an application for re-registration. That list did not require any specific form in which these documents were to be submitted, whether as originals or in copies (see paragraph 58 above). According to the Court's settled case-law, the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law and also that the law be formulated with sufficient precision to enable the citizen to foresee the consequences which a given action may entail and to regulate his or her conduct accordingly (see, as a classic authority, Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, § 49). The requirement to submit the original documents did not follow from the text of the Religions Act and no other regulatory documents which might have set out such a requirement were referred to in the domestic proceedings. It was not mentioned in the grounds for the refusal advanced by the Moscow Justice Department or in the Presidium's decision remitting the matter for a new examination, but appeared for the first time in the District Court's judgment. In these circumstances, the Court is unable to find that the domestic law was formulated with sufficient precision enabling the applicant to foresee the adverse consequences which the submission of copies would entail. Furthermore, the Court considers that the requirement to enclose originals with each application would have been excessively burdensome, or even impossible, to fulfil in the instant case. The Justice Department was under no legal obligation to return the documents enclosed with applications it had refused to process and it appears that it habitually kept them in the registration file. As there exists only a limited number of original documents, the requirement to submit originals with each application could have the effect of making impossible re-submission of rectified applications for re-registration because no more originals were available. This would have rendered the applicant's right to apply for re-registration as merely theoretical rather than practical and effective as required by the Convention (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33). It was pointed out by the applicant, and not contested by the Government, that the Moscow Justice Department had in its possession the original charter and registration certification, as well as the document evidencing its address, which had been included in the first application for re-registration in 1999 and never returned to the applicant. In these circumstances, the District Court's finding that the applicant was responsible for the failure to produce these documents was devoid of both factual and legal basis.

93. The Nikulinskiy District Court also determined that the applicant had not produced information on the basic tenets of creed and practices of the religion. The Court has previously found that the refusal of registration for a failure to present information on the fundamental principles of a religion may be justified in the particular circumstances of the case by the necessity to determine whether the denomination seeking recognition presented any danger for a democratic society (see Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (dec.), no. 12282/02, 14 June 2005). The situation obtaining in the present case was different. It was not disputed that the applicant had submitted a book detailing the theological premises and practices of Scientology. The District Court did not explain why the book was not deemed to contain sufficient information on the basic tenets and practices of the religion required by the Religions Act. The Court reiterates that, if the information contained in the book was not considered complete, it was the national courts' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents (see The Moscow Branch of The Salvation Army, cited above, § 90, and Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006). This had not, however, been done. Accordingly, the Court considers that this ground for refusing re-registration has not been made out.

94. The Court does not consider it necessary to examine whether the refusals grounded on the expiry of the time-limit for re-registration were justified because in the subsequent proceedings the domestic courts acknowledged that the Moscow Justice Department's decision not to process an application for registration of the amended charter on that ground was unlawful (see paragraphs 47 and 48 above). In any event, as the Court has found above, the applicant's failure to secure re-registration within the established time-limit was a direct consequence of arbitrary rejection of its earlier applications by the Moscow Justice Department.

95. Finally, as regards the rejection of the most recent, eleventh application on the ground that the document showing fifteen-year presence in Moscow had not been produced (see paragraph 51 above), the Court notes that this requirement had no lawful basis. The Constitutional Court had determined already in 2002 that no such document should be required from organisations which had existed before the entry into force of the Religions Act in 1997 (see paragraph 61 above). The applicant had been registered as a religious organisation since 1994 and fell into that category.

96. It follows that the grounds invoked by the domestic authorities for refusing re-registration of the applicant had no lawful basis. A further consideration relevant for the Court's assessment of the proportionality of the interference is that by the time the re-registration requirement was introduced, the applicant had lawfully existed and operated in Moscow as an independent religious community for three years. It has not been submitted that the community as a whole or its individual members had been in breach of any domestic law or regulation governing their associative life and religious activities. In these circumstances, the Court considers that the reasons for refusing re-registration should have been particularly weighty and compelling (see The Moscow Branch of The Salvation Army, cited above, § 96, and the case-law cited in paragraph 86 above). In the present case no such reasons have been put forward by the domestic authorities.

97. In view of the Court's finding above that the reasons invoked by the Moscow Justice Department and endorsed by the Moscow courts to deny re-registration of the applicant branch had no legal basis, it can be inferred that, in denying registration to the Church of Scientology of Moscow, the Moscow authorities did not act in good faith and neglected their duty of neutrality and impartiality vis-à-vis the applicant's religious community (see The Moscow Branch of The Salvation Army, cited above, § 97).

98. In the light of the foregoing, the Court considers that the interference with the applicant's right to freedom of religion and association was not justified. There has therefore been a violation of Article 11 of the Convention read in the light of Article 9.

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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