CASE OF KUZNETSOV AND OTHERS v. RUSSIA
Violation of Art. 9;Violation of Art. 6;Non-pecuniary damage - award
Christos Rozakis
7. The applicants are Jehovah's Witnesses. The applicant Mr Konstantin Nikanorovich Kuznetsov is a representative of the Administrative Centre of Jehovah's Witnesses in Russia. The other applicants are members of the Chelyabinsk community of Jehovah's Witnesses. 8. Between 1997 and 2001 the Chelyabinsk community of Jehovah's Witnesses filed twelve applications for State registration with the regional Department of the Ministry of Justice. Their applications were refused on 17 May 1996, 20 June and 3 November 1997, 21 January, 30 April, 28 June, 15 July and 16 December 1999, 30 June and 17 August 2000, 11 May and 24 September 2001. Each refusal was justified by reference to alleged formal defects in the registration documents. 9. The applicants complained to a court. On 24 July 2002 the Tsentralniy District Court of Chelyabinsk ruled that the refusal of 24 September 2001 had been unlawful. On 28 October 2002 the Chelyabinsk Regional Court upheld this decision and ordered the registration of the Chelyabinsk community of Jehovah's Witnesses. On 31 March 2003 the community was officially registered by the Chief Directorate of the Ministry of Justice for the Chelyabinsk Region. 10. In the applicants' submission, Ms Yekaterina Gorina, appointed by the Chelyabinsk Regional Governor as Chairwoman of the regional Human Rights Commission (“the Commissioner”), had attempted on several occasions to initiate criminal proceedings against the Chelyabinsk community of Jehovah's Witnesses on the ground that the community had “lured” young children into their “sect”. 11. On 25 May 1999 a senior investigator with the Chelyabinsk town prosecutor's office found no indications of a criminal offence and decided not to open a criminal investigation into the activities of the members of the Jehovah's Witnesses' community. 12. Following the Commissioner's intervention, the decision of 25 May 1999 was reversed and an additional inquiry was ordered. 13. On 3 March 2000 the deputy Chelyabinsk town prosecutor again dismissed the allegations against the members of the Jehovah's Witnesses' community on the ground that no evidence pointing towards a criminal offence could be found. 14. On 6 February 1999 Mr Z., a member of the local community of Jehovah's Witnesses, acting on behalf of the Administrative Centre of the Religious Organisation of Jehovah's Witnesses, negotiated a lease agreement with Mr U., principal of vocational training college no. 85 in Chelyabinsk, in respect of the college auditorium and associated facilities. According to Article 1.1 of the lease agreement, the premises were rented for the purpose of holding religious meetings on Tuesdays between 7 a.m. and 9 p.m. and on Sundays between 10 a.m. and 4 p.m., outside the normal college teaching hours. 15. The lease agreement was intended to run from 7 February to 31 December 1999. It also contained a provision that it would be automatically renewed on the same terms and conditions and for the same period unless either side gave one month's advance notice of its intent to terminate the agreement. No such notice appears to have been given by either party. Thereafter the agreement continued to run for the extended one-year period, but with the lessees only authorised to terminate it subject to two months' notice in writing. There was no reciprocal power for the college to terminate the agreement during the extended period. 16. By April 2000 the applicants had been using the college facilities for fourteen months and had paid their rent on time and in accordance with the terms and conditions. As a means of raising additional revenue for the college, its principal entered into similar lease agreements with four other organisations. 17. On 31 March 2000 the Chief Directorate for Vocational Training and Science of the Chelyabinsk Regional Administration issued an order prohibiting all educational establishments in the Chelyabinsk Region from renting out their premises for religious services, meetings, and so forth. 18. On 12 April 2000 the Commissioner, together with an unidentified senior police officer, visited Mr U., principal of college no. 85, and attempted to persuade him to terminate the lease agreement with the applicants. The principal refused the request. The Commissioner demanded to see the agreement and took a photocopy of it. She then asked a number of detailed questions about the days and times of the Jehovah's Witnesses' meetings. The principal provided the information. 19. On Sunday 16 April 2000, in accordance with the lease agreement, the Jehovah's Witnesses used the college facilities. Two consecutive meetings were on the agenda. The first meeting ended without incident. 20. The second meeting, from 1.30 to 3.30 p.m., was of a group with special needs; most of the participants were profoundly deaf. Many of those in attendance were elderly and also had impaired vision. A person trained in sign language provided interpretation at the meeting, the purpose of which was to study the Bible and join in public worship. The meeting was open to the general public: attendants were positioned near the entrance to the meeting place to greet newcomers and assist with seating. 21. The first part of the meeting was a talk given from the platform by Mr Kuznetsov, who had a mastery of sign language. There were 159 persons present, including all the applicants. 22. At some time between approximately 2.10 and 2.15 p.m. the Commissioner entered the foyer which gives access from the street to the meeting place, holding a child by the hand. The applicant Mr Setdarberdi Oregeldiev, who is profoundly deaf but has no speech impairment, was the attendant on duty. He went out into the foyer to greet the Commissioner and the child and show them to a seat. Realising that the visitor was not deaf, another applicant, Mr Dmitri Gashkov, who did not have impaired speech or hearing, went to assist. He invited the Commissioner into the meeting hall and offered her a chair; she refused and said that the police were about to arrive. 23. After this brief exchange the Commissioner left the foyer. The speaker went on with his talk, which ended at approximately 2.25 p.m. 24. The second part of the meeting was conducted in sign language. This part was in progress, with about 15 minutes left and 45 minutes to go before the end of the contracted rental time of 4 p.m., when the Commissioner again entered the foyer, this time without the child. She was now accompanied by Mr Tomskiy, managing director of the Commissioner-affiliated commercial company Man. Law. Power, and by two senior police officers, Mr Vildanov, deputy head of the District Inspectors' Service of the Traktorozavodskiy Police Department of Chelyabinsk, and Mr Lozovyagin, a senior district inspector with the same department. Mr Tomskiy was holding and using a camcorder to film. 25. The Commissioner led the way forward and walked to the threshold of the door into the meeting hall. Mr Tomskiy was a short distance behind, filming with the camcorder. One of the applicants, Ms Lappo, who was not hearing-impaired and was sitting close to the door in a position to observe the events, later testified before the District Court as follows: “On 16 April 2000 a woman accompanied by two police officers and a man in plain clothes came to the meeting. They stood in the entrance so that I couldn't see the programme. The Commissioner said to one of the men 'Stop the meeting', but he hesitated and said 'But they are deaf mutes'. I told one of the congregation to go and get Konstantin [Kuznetsov]. When Konstantin came out to them there was a conversation with raised voices. The Commissioner asked if there were children in the hall and whether they were all with their parents. Then they asked Konstantin for his passport in an unpleasant manner... ...When I found out who the Commissioner was I was very displeased. I demand that you fire her from her position in the Human Rights Commission...” When asked by the judge what the Commissioner had said to the police officer, Ms Lappo responded: “She said: 'You – go up on to the stage and say that the congregation has to disperse'.” 26. Mr Kuznetsov approached the Commissioner and the police officers. As he was standing in the doorway with his back to the meeting hall, the police officer Mr Lozovyagin asked him for his identity papers. He also asked Mr Kuznetsov whether he had a registered residence in Chelyabinsk. Mr Lozovyagin testified before the District Court as follows: “So I asked him [Kuznetsov] to show me his passport. It showed that he was registered in the Krasnodar Region. I told him that he did not have the right to conduct arrangements without documents”. Mr Kuznetsov submitted that that statement had been incorrect; it was true that his registered place of birth was in the Krasnodar Region, but he also had a properly and lawfully registered temporary residence in Chelyabinsk. 27. In his testimony before the District Court, Mr Lozovyagin continued as follows: “I told Kuznetsov that their organisation did not have the right to conduct its activities without the appropriate documents. He promised to bring the documents to the police station. I asked him to produce the documents. He said 'They exist and are elsewhere', but which documents and where he did not say. I asked him for a document confirming his relationship to the organisation...” Responding to the judge's question about the violations of law and order that he had observed, Mr Lozovyagin said: “Yes, to start with a meeting of an organisation whose activities could not be confirmed by any documents... By law I had to stop the activities until the documents were produced.” This was confirmed by the police officer Mr Vildanov who spoke as follows before the District Court: “Lozovyagin said that the meeting should no longer be conducted and that documents should be prepared giving permission [for services of worship in educational establishments].” In their written submissions on the admissibility and merits of the case, the Government indicated that Mr Lozovyagin had invited Mr Kuznetsov to cancel all events until such time as the appropriate documents had been produced. 28. Mr Kuznetsov submitted that he had been faced with authoritarian demands and the intimidating behaviour of the Commissioner and the police and had thought it best to comply. He described the situation in the following manner: “I believe that we were conducting the meetings on a lawful basis. Pressure was being put on me. Tomskiy gave me an official warning. I was afraid they would start removing those present at the meeting by force. Vildanov and Lozovyagin were in uniform. I understood that they were in a position of authority and must be obeyed...” 29. Mr Kuznetsov went to the platform, interrupted the Bible discussion and made an announcement in sign language: “Police. We have to submit”. The attendees offered no resistance. They gathered their personal belongings and filed out of the meeting place and the foyer. The Commissioner and the police officers stood outside the building and watched; Mr Tomskiy was no longer filming. 30. According to the applicants, the Commissioner came up with several conflicting and mutually exclusive versions of her role in the events. Initially she maintained that the visit had been purely for the purpose of fact-finding; that neither she nor the police had done anything to cause the meeting to be stopped; and that Mr Kuznetsov had stopped the meeting entirely of his own free will. As the case progressed and more evidence was heard from eyewitnesses who testified to the part played by her and the police, the Commissioner eventually admitted that steps had indeed been taken to stop the meeting; however, she blamed the police. She insisted that she had made no demands to Mr Kuznetsov as the operation had been organised and carried out by the police officials. At the trial, however, she was pressed to say that she had agreed with and supported the police decision. Finally, in explaining her agreement with the police decision and when pressed as to why, as Chairwoman of the Human Rights Commission, she had given her agreement, she gave the following answer: “I still consider these actions to be lawful – I was defending the rights of all the children who study at college no. 85. [Question:] In which documents is information about the danger of Jehovah's Witnesses to the neighbourhood contained? [The Commissioner:] As far as I'm concerned, the reports in the press are sufficient.” 31. On 17 April 2000, the day after the disruption of the religious meeting, the principal of college no. 85 informed Mr Z. that the lease agreement between the college and the community of Jehovah's Witnesses would be terminated as of 1 May 2000 “because of certain irregularities committed by the college administration at the time of its signing”. 32. On an unspecified date the applicants complained to the Chelyabinsk town prosecutor about the actions of the Commissioner and the police officers. They requested a criminal investigation into the officials' actions. 33. The prosecutor's office put questions to the Commissioner, Mr Lozovyagin and Mr Vildanov. In their written statements of 3 May 2000 the officials claimed that they had investigated a complaint by a 15-year-old girl who had been “lured” into the Jehovah's Witnesses “sect”. The Commissioner stated that “Lozovyagin and Vildanov [had] decided to halt the event, which was being held by an unknown organisation in sign language”. Mr Lozovyagin did not deny that he had asked Mr Kuznetsov for documents and told him that the event would be halted until such time as they had been produced. Mr Vildanov testified in the same vein. As to the lawfulness of their actions, all three officials claimed that, as it was not registered with the State as a legal entity, the Chelyabinsk community of Jehovah's Witnesses had no right to hold religious services and that the lease agreement with the college principal had been null and void. 34. On an unspecified date the prosecutor's office decided not to institute criminal proceedings against the Commissioner and the police officers. 35. On 11 July 2000 the applicants filed a civil complaint with the Sovietskiy District Court of Chelyabinsk alleging unlawful actions on the part of the Commissioner. 36. On 13 November 2000 the applicants amended their complaint and joined Mr Tomskiy, Mr Lozovyagin, Mr Vildanov and Mr Kuryshkin, deputy head of the Traktorozavodskiy police department, as co-defendants. The applicants alleged violations of their rights to freedom of religion and freedom of association, as guaranteed both by the Russian Constitution and the Convention. 37. During the trial the presiding judge did not consent to the use of audio-recording equipment provided by the applicants' lawyers. However, this injunction applied only to advocates and one of the applicants was able to record the trial on a personal audio recorder. 38. On 25 January 2001 the Sovietskiy District Court of Chelyabinsk gave judgment. It found it established that the Commissioner, Mr Tomskiy, Mr Lozovyagin and Mr Vildanov had arrived at college no. 85 on 16 April on a fact-finding mission to check whether a religious meeting had been taking place there. However, as it had been Mr Kuznetsov who had got up on the stage and announced, in sign language, that the meeting was to end, the District Court found that the applicants had failed to show that the religious meeting had been terminated on the defendants' orders. As regards the assessment of the evidence given by the applicants, the District Court held as follows: “Assessing the statements given by certain plaintiffs, and in particular by Ms Lappo and Ms Kadyrova, who claimed that they had heard Ms Gorina giving the police officers the instruction to halt the meeting and that they, in turn, had relayed it to Mr Kuznetsov... the court takes into account the fact that these individuals are interested in the outcome of the proceedings and, for that reason, the court views their submissions critically ... During the trial, none of the State officials... admitted to taking action to halt the meeting; their position concurs with the witness statements given by many of the plaintiffs, who confirmed that they had not entered the hall but remained in the foyer”. The District Court dismissed the applicants' complaint for their failure to prove that the early termination of the meeting had been brought about by the Commissioner and her aides. 39. The applicants filed a statement of appeal. They pointed to multiple admissions by the Commissioner and the police officers, before the District Court and in their statements to the prosecutor dated 3 May 2000, that they had instructed Mr Kuznetsov to terminate the meeting. They also submitted that the concordant statements of fifteen applicants could not be rejected as those of “interested witnesses” and that the District Court had not specified what the applicants' “interest” had been, given that no claim for damages had been filed. 40. On 28 June 2001 the Chelyabinsk Regional Court, ruling on an appeal by the applicants, upheld the judgment of 25 January 2001. The Regional Court repeated verbatim the reasoning of the District Court. It did not address the arguments set out in the statement of appeal. 41. The applicants also complained about the actions of the regional Commissioner to Mr Mironov, Ombudsman of the Russian Federation. 42. On 1 December 2000 the Ombudsman sent a letter to Mr Ustinov, the Prosecutor General of the Russian Federation. The Ombudsman strongly condemned the use of derogatory terms such as “sect” and “totalitarian sect” in the documents issued by State officials. In its relevant part the letter read as follows: “...In particular, the letter from the deputy Prosecutor General, Ye.G.Chuganov, to the Chairwoman of the Governor's Commission for Human Rights in the Chelyabinsk Region, Ye.V.Gorina, was widely distributed... It recommended using as reference material on the activity of the Jehovah's Witnesses the book An Introduction to Sectarianism by A. Dworkin, and the handbook New Destructive and Occult-Related Religious Organisations in Russia, prepared by the Missionary Department of the Moscow Patriarchate [of the Russian Orthodox Church]... The publication referred to in the letter is highly condemnatory in respect of certain faiths. It reflects the judgment of one religious organisation about others and its contents serve to prove the 'authenticity' of one religion and the 'falseness' of the other(s)... The situation is further aggravated by the fact that Chuganov's letter was used in trials where it was portrayed as reflecting the official stance taken by the Prosecutor General's Office of Russia. For example, in Chelyabinsk, in the course of examination of a complaint by the local community of Jehovah's Witnesses against the Chairwoman of the regional Commission for Human Rights Ms Gorina, the latter constantly referred to Dworkin's book as a handbook recommended by the Prosecutor General's Office that contained reliable information on the activity of so-called destructive sects, including the community of Jehovah's Witnesses. This was used to justify the extremely heavy-handed conduct of the municipal authorities towards the Jehovah's Witnesses, in particular their breaking-up, with the aid of the police, of the believers' prayer meeting being held on the premises which they had been renting for an extended period of time.” 43. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and to manifest them in practice. 44. The State may not interfere with the activities of religious associations provided that they comply with the law (section 4 § 2). State and other public officials may not use their position to foster any specific attitude towards a religion (section 4 § 4). 45. Religious associations may take the form of either a religious group or a religious organisation (section 6 § 2). A religious group carries on its activities without State registration and without obtaining legal entity status (section 7 § 1). The right to use rented property for religious purposes is conferred only on registered religious organisations; religious groups may only use premises provided by participants (section 22). 46. Services of worship and other religious rites and ceremonies may be performed without interference in buildings and structures intended for worship and their adjacent areas, and in other premises made available to religious organisations for these purposes (section 16 § 2). 47. A court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens' rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2). 48. The Education Act prohibits structural units of political parties, political and religious movements and organisations from being set up and operated in State and municipal educational establishments and education management bodies (section 1 § 5). 49. An educational establishment may lease and rent out property. Rental income must be used for educational needs (section 39 § 11). 50. On 30 July 1999 a deputy President of the Supreme Court ruled on the complaint brought by the local authorities of Kaluga against an elder of the local community of Jehovah's Witnesses who had allegedly failed to give notice of a religious meeting to the local authorities: “...according to the Russian Law on freedom of conscience and religious associations, the phrase 'without obstruction' means that no permission from, or clearing of the matter with, the secular authorities is required for performing religious ceremonies on premises provided [for that purpose].” 51. On 14 August 2001 a deputy President of the Supreme Court ruled on a similar complaint brought by the authorities of Kislovodsk against a Jehovah's Witness in connection with an allegedly unauthorised religious gathering: “According to Article 16 of the Russian Federation Law on freedom of conscience and religious associations, religious services and other religious rites and ceremonies can take place without any interference... in other places made available to religious organisation for that purpose... Therefore, the local religious organisation was not required to inform the State authority of its gathering.”