Acquisition of Legal Personality and Registration

Moscow Branch of the Salvation Army v Russia, 5 October 2006 [ECtHR]

Case no 72881/01

72. The Court observes that in 1997 the respondent State enacted a new Religions Act which required all the religious organisations that had been previously granted legal-entity status to amend their articles of association in conformity with the new Act and to have them “re-registered” within a specific time-period (see paragraphs 38 and 44 above). The procedure for “re-registration” was the same as for the initial registration of a religious organisation and the same grounds for refusing a registration application applied (see paragraphs 39 and 41 above). In addition, “re-registration” could be refused if grounds existed for dissolving a religious organisation or for banning its activities (see paragraph 43 above). A failure to obtain “re-registration” for whatever reason before the expiry of the time-limit exposed the religious organisation to a threat of dissolution by judicial decision (see paragraph 44 above).

73. The Court notes that, prior to the enactment of the new Religions Act, the applicant branch had lawfully operated in Russia since 1992. It was unable to obtain “re-registration” as required by the Religions Act and consequently became liable for dissolution by operation of law. After 6 December 2001, when it exhausted ordinary domestic remedies against the judicial decision ordering its dissolution, and until that decision was quashed by way of supervisory review on 1 August 2002, the applicant branch continuously ran the risk of having its accounts frozen and its assets seized (cf. Christian Democratic People's Party v. Moldova (dec.), no. 28793/02, 22 March 2005). The Court accepts that that situation had an appreciably detrimental effect on its functioning and religious activities (see paragraphs 29 to 33 above). Even though the Constitutional Court's ruling later removed the immediate threat of dissolution from the applicant branch, it is apparent that its legal capacity is not identical to that of other religious organisations that obtained re-registration certificates. The Court observes that in other cases the absence of re-registration was invoked by the Russian authorities as a ground for refusing registration of amendments to the articles of association or for staying the registration of a religious newspaper (see Church of Scientology Moscow and Others v. Russia (dec.), no. 18147/02, 28 October 2004).

74. The Court considers that in the present circumstances, in which the religious organisation was obliged to amend its articles of association and where registration of such amendments was refused by the State authorities, with the result that it lost its legal-entity status, there has been an interference with the organisation's right to freedom of association. As the Religions Act restricts the ability of a religious association without legal-entity status to exercise the full range of religious activities (see Kimlya, Sultanov and Church of Scientology of Nizhnekamsk v. Russia (dec.), nos. 76836/01 and 32782/03, 9 June 2005), this situation must also be examined in the light of the organisation's right to freedom of religion.

75. Accordingly, as the Court has found that there has been an interference with the applicant's rights under Article 11 of the Convention read in the light of Article 9 of the Convention, it must determine whether such interference satisfied the requirements of paragraph 2 of those provisions, that is whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” (see, among many authorities, Metropolitan Church of Bessarabia, cited above, § 106).

4.  Justification for the interference

(a)  General principles applicable to the analysis of justification

76.  The Court reiterates that the list of exceptions to freedom of religion and assembly, as contained in Articles 9 and 11 of the Convention, is exhaustive. The exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In determining whether a necessity within the meaning of paragraph 2 of these Convention provisions exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see Gorzelik, cited above, § 95; Sidiropoulos, cited above, § 40; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 84, ECHR 2001‑IX).

77. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey, cited above, § 47, and Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005‑I (extracts)).

(b)  Arguments put forward in justification of the interference

78. The Court observes that the grounds for refusing re-registration of the applicant branch were not consistent throughout the domestic proceedings. Although the Moscow Justice Department initially referred to an insufficient number of founding members and the absence of documents showing their lawful residence in Russia, these purported defects found no mention in the subsequent judicial decisions (see paragraphs 14, 16 and 17 above). The allegedly paramilitary nature of the applicant's structure did not form part of the initial decision refusing re-registration and the Department put that argument forward for the first time in its comments on the applicant's claim to a court (see paragraph 15 above). That reason was accepted by the District Court but the City Court did not consider that it required separate examination (see paragraph 17 above). Finally, the argument about inconsistent indication of the applicant's religious affiliation was not relied upon by the Justice Department and appeared for the first time in judicial decisions (ibid.)

79. The Government did not specify the particular grounds for denying re-registration to the applicant branch. They did not advance any justification for the interference.

80. In these circumstances, the Court will examine in turn two groups of arguments that were put forward for refusing the applicant's re-registration: those relating to the applicant branch's “foreign origin” and those relating to its internal structure and religious activities.

(i)   The applicant branch's “foreign origin”

81. The Russian authorities held that since the applicant's founders were foreign nationals, in that it was subordinate to the central office in London and had the word “branch” in its name, it must have been a representative office of a foreign religious organisation ineligible for “re-registration” as a religious organisation under Russian law.

82. The Court observes, firstly, that the Religions Act indeed prohibited foreign nationals from being founders of Russian religious organisations. It finds, however, no reasonable and objective justification for a difference in treatment of Russian and foreign nationals as regards their ability to exercise the right to freedom of religion through participation in the life of organised religious communities.

83. Secondly, it does not appear that the presence of The Salvation Army's headquarters abroad prevented registration of the applicant as a Russian religious organisation. Section 11 § 6 of the Religions Act concerned precisely the situation where a Russian religious organisation was subordinate to the central governing body located abroad (see paragraph 40 above). The only additional requirement in that case was the production of the certified articles of association of the foreign governing body; that circumstance was not a legal ground for refusing registration or re-registration.

84. Thirdly, under the Religions Act, the only instance in which a religious organisation's name could preclude its registration was where it was identical to the name of another registered organisation. It has not been claimed that this was the case of the applicant branch. By law, the mere presence of the word “branch” in its name was not a circumstance precluding its registration.

85. Finally, the Court notes that, by the time of the events, the applicant branch had existed for seven years as an independent legal entity exercising a broad range of religious rights. The Moscow Justice Department and domestic courts insisted that it should be registered as a representative office of a foreign religious organisation with the consequence that under Russian law it would not be entitled to status as a legal entity or to continue its religious activities (see paragraph 46 above). As noted above, that claim by the domestic authorities had no legal foundation. Accordingly, in the Court's assessment, it amounted to a refusal on the ground that its establishment was inexpedient, which had been expressly prohibited by section 12.2 of the Religions Act (see paragraph 42 above).

86. It follows that the arguments pertaining to the applicant's alleged “foreign origin” were neither “relevant and sufficient” for refusing its re-registration, nor “prescribed by law”.

(ii)  Religious structure of the applicant branch

87. The District and City Courts held that the applicant branch did not set out its religious affiliation and practices in a precise manner but confusingly referred to the Evangelical faith, the faith of The Salvation Army and the Christian faith and omitted to describe all of its decisions, regulations and traditions.

88. The Court observes that the applicant's articles of association submitted for re-registration clearly designated the applicant branch as a religious organisation adhering to the tenets of the Christian faith. A schedule that formed an integral part of its articles of associations set out the premises on which the religious doctrine of The Salvation Army was founded.

89. The Religions Act did not lay down any guidelines as to the manner in which the religious affiliation or denomination of an organisation should be described in its founding documents. Section 10 § 2 of the Religions Act, to which the City Court referred, merely required the indication of the organisation's creed (veroispovedanie). There was no apparent legal basis for the requirement to describe all “decisions, regulations and traditions”.

90. If the applicant's description of its religious affiliation was not deemed 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 in order to be able to obtain re-registration (see 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 registration has not been substantiated.

91. Further, the Moscow Justice Department alleged that the applicant branch should be denied registration on the ground that it was a “paramilitary organisation”, since its members wore uniform and performed service, and because the use of the word “army” in its name was not legitimate. The District Court endorsed that argument.

92. The Court points out that, according to its constant case-law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Hasan and Chaush, cited above, § 78, and Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions 1996‑IV, § 47). It is undisputable that for the members of the applicant branch, using ranks similar to those used in the military and wearing uniforms were particular ways of organising the internal life of their religious community and manifesting The Salvation Army's religious beliefs. It could not seriously be maintained that the applicant branch advocated a violent change in the State's constitutional foundations or thereby undermined the State's integrity or security. No evidence to that effect had been produced before the domestic authorities or by the Government in the Convention proceedings. It follows that the domestic findings on this point were devoid of factual basis.

93. The District Court also inferred from the applicant's articles of association that the members of the applicant branch would “inevitably break Russian law in the process of executing The Salvation Army's Orders and Regulations and the instructions of the Officer Commanding”.

94. The Court reiterates that an association's programme may in certain cases conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the association's leaders and the positions they embrace (see Refah Partisi, § 101, and Partidul Comunistilor, § 56, both cited above).

95. There was no evidence before the domestic courts that in seven years of its existence the applicant branch, its members or founders had contravened any Russian law or pursued objectives other than those listed in its articles of associations, notably the advancement of the Christian faith and acts of charity. It follows that this finding by the District Court also lacked evidentiary basis and was therefore arbitrary.

(iii)  Further considerations relevant for the Court's assessment

96. As noted above, by the time the re-registration requirement was introduced, the applicant branch had lawfully existed and operated in Russia as an independent religious community for more than seven 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 case-law cited in paragraph Błąd: Nie znaleziono źródła odwołania above). In the present case no such reasons have been put forward by the domestic authorities.

97. It is also relevant for the Court's assessment that, unlike the applicant branch, other religious associations professing the faith of The Salvation Army have successfully obtained re-registration in Russian regions and at federal level (see points 99 and 101-04 of the Report on Russia's Honouring of its Commitments, cited in paragraph 47 above, and point 5 of the Parliamentary Assembly's Resolution on the Russian Religions Act, cited in paragraph 49 above). In view of the Court's finding above that the reasons invoked by the Moscow Justice Department and endorsed by the Moscow courts in order to deny re-registration of the applicant branch had no legal or factual basis, it can be inferred that, in denying registration to the Moscow branch of The Salvation Army, 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 Metropolitan Church of Bessarabia, § 123, Hasan and Chaush, § 62, both cited above).

(c)  Conclusion

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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