SKUGAR AND OTHERS v. RUSSIA
Inadmissible
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
The applicants, Mrs Tamara Sergeyevna Skugar, Mrs Lidiya Sergeyevna Dzyuba and Mrs Aleksandra Ivanovna Gavrutenko, are Russian nationals who were born in 1936, 1939 and 1944, respectively, and live in the town of Tarko-Sale in the Yamalo-Nenetskiy Region of the Russian Federation. On 10 March 1999 the Government adopted regulations on the Unified State Register of Taxpayers (the “Register”). Information on taxpayers was to be entered in the Register on the basis of taxpayer's individual identification numbers (индивидуальный номер налогоплательщика (ИНН), the “taxpayer's number”). The taxpayer's number was a twelve-digit sequence which included two digits for the regional tax inspectorate, the taxpayer's sequential number, and the check value. On an unspecified date the applicants submitted applications to district tax inspectorate no. 4 of the Yamalo-Nenetskiy Region to have their taxpayers' numbers cancelled on the ground that the numbers “had been assigned to them through ignorance... because that number is a forerunner of the mark of the Antichrist as it is said in the Apocalypse, Revelation, 13:15-13:16”. They claimed that they did not refuse to pay taxes but merely sought an opportunity “to exercise freely the rights of a Russian citizen without the taxpayer's identification number”. On 28 January 2002, 7 October 2003 and other dates the tax inspectorate responded to their applications in the following terms: “An individual interacting with the tax authority is not assigned a number, he is merely issued with a certificate showing his status as a taxpayer and the taxpayer's number. And there is an important distinction; the number does not replace the person's Christian name and it does not contain information on the person's family status or relationships with parents, friends or other persons... In any event, the taxpayer's number is, in essence, nothing more than the number of his personal account at the tax authority. Similar numbers were introduced for accounting of payers by the Pension Fund and the Medical and Social Security Fund... In the final document of the 7th Plenary Session of the Synodal Theological Commission of the Russian Orthodox Church held in Moscow on 19-20 February 2001 the following conclusion, in particular, was made: acceptance or non-acceptance of individual numbers is not, by any means, a religious question or a sinful deed. This is a matter of personal choice that has no religious significance...” The tax inspectorate informed the applicant that the Tax Ministry had prepared for Orthodox believers a special questionnaire approved by the Orthodox Highest Clergy Council (Архиерейский Собор) on 13-16 August 2000, and invited them to their offices for a discussion. It is unclear whether the applicants attended the discussion and what its outcome was. In April 2004 the applicants complained to a court, claiming that the taxpayer's number had been “imposed on them contrary to their religious convictions”. They submitted that the interference with their right to freedom of religion was not absolutely necessary, because their demands did not violate other citizens' rights and because before 1994 the tax system had operated without any personal numbers. On 19 April 2004 the Purovskiy District Court of the Yamalo-Nenetskiy Region gave a judgment on their complaint. Referring to the Constitutional Court's decision of 10 July 2003 (see below), the District Court found that the tax inspectorate had lawfully acted within its competence and that the allocation of the taxpayer's number did not interfere with the claimants' private life or their right to act in accordance with their religious beliefs. The applicants lodged a statement of appeal. They claimed that the State had violated their right to follow their beliefs by imposing on them a “mark of sin” in the form of the taxpayer's number. On 17 June 2004 the Yamalo-Nenetskiy Regional Court upheld the judgment on appeal. It emphasised that: “...the identification number does not replace the person's name and may be used, alongside with other tax accounting data, solely for the purposes of taxation; it does not encroach on the citizen's person or rights.” On 10 July 2003 the Constitutional Court declared inadmissible a complaint by a group of individuals who claimed that attribution of a taxpayer's number without the taxpayer's consent violated their constitutional rights to respect for their private life and to freedom of religion and belief. It found, in particular, as follows: “The taxpayer's number is a numerical code consisting of twelve sequential digits... Thus, any appearance in the taxpayer's number of a certain number that might hurt the taxpayer's religious feelings is fortuitous; the taxpayer's number does not replace the person's name and shall be used, alongside with other tax data, solely for the purposes of tax accounting. Accordingly, there is no reason to assert that [Article 84 of the Tax Code] violates the right to freedom of religion or the prohibition on collecting, storing, using and disseminating information about an individual without his or her consent. Besides, the Tax Code does not prevent the taxpayer's number from being changed in cases where the taxpayer's religious convictions so require... Since [Article 84 of the Tax Code] does not encroach, as such, on the claimants' constitutional rights and freedoms, the present complaint is inadmissible...” Article 84 § 8 of the Tax Code (Federal Law no. 46-FZ of 31 July 1998) provides: “Every taxpayer... shall be assigned a unique identification taxpayer's number. The tax authorities shall mention the taxpayer's number in all documents sent to the taxpayer. Every taxpayer shall mention his taxpayer's number in all declarations, reports, statements and other documents submitted to the tax authorities...” By Federal Law no. 137-FZ of 27 July 2006, the following paragraph was added to Article 84 § 8 of the Tax Code: “Individuals who are not registered as self-employed entrepreneurs shall have the right not to mention their taxpayer's numbers in the submitted documents on the condition that they have listed their personal data enumerated in paragraph 1 of Article 84 [name, date and place of birth, address, passport and citizenship].” On 7 March 2000 the Holy Synod of the Russian Orthodox Church adopted an appeal to believers concerning taxpayer's identification numbers. It held, in particular, as follows: “We want to state clearly: fear not the external symbols and signs, for no delusion created by the enemy to human souls may prevail the God's grace that abounds in the Holy Church... To those who attempt to link the identification numbers with the 'antichrist's mark' we remind that the tradition of the holy fathers understood the marks as a sign certifying deliberate repudiation of Christ... In spite of that tradition it is occasionally claimed that a technological act allegedly may, by itself, create turmoil in the innermost depths of the human soul leading to Christ's oblivion. Such a superstition is at variance with the Orthodox interpretation of the Revelation of St John the Divine, according to which the 'mark of the Beast' will be received by those who deliberately put faith in him 'solely for the sake of his false miracles' (St John Chrysostom). No external mark may harm the spiritual health of the person unless it is a consequence of deliberate treason of Christ and profanation of faith...” In 1986, the United States Supreme Court issued a judgment in the case of Bowen v. Roy, 476 U.S. 693 (1986), in which the parents of a two-year-old child contended that using a social security number to identify their daughter would “steal her soul” and violate their native American religious beliefs. By a majority, the Supreme Court found against the parents, holding as follows: “Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. This case implicates only the latter concern... Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. As a result, Roy may no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures... The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms, and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously, or any covert suppression of particular religious beliefs... We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons... In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude... Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden [of proof] when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest...” A subsequent case before the United States Supreme Court, Employment Div. v. Smith, 494 U.S. 872 (1990), concerned two individuals who were fired from their job for ingesting peyote for sacramental purposes at a ceremony of their Native American Church. The Supreme Court affirmed its approach, finding as follows: “Although a State would be 'prohibiting the free exercise [of religion]' in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons... The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'... To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' – permitting him, by virtue of his beliefs, 'to become a law unto himself,'... – contradicts both constitutional tradition and common sense.”