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FIRST
SECTION
CASE OF
BARANKEVICH v. RUSSIA
(Application
no. 10519/03)
JUDGMENT
STRASBOURG
26 July 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Barankevich v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10519/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Petr Ivanovich
Barankevich (“the applicant”), on 25 February 2003.
- The
applicant was represented before the Court by Mr S. Sychev, a lawyer
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant complained about a violation of his rights to freedom of
religion and peaceful assembly.
- By
a decision of 20 October 2005 the Court declared the application
admissible.
-
The Government, but not the applicant, filed further written
observations (Rule 59 § 1). The Court decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 §
3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1960 and lives in the town of
Chekhov in the Moscow region. He is the pastor of the “Christ's
Grace” Church of Evangelical Christians (Церковь
евангельских
христиан “Благодать
Христова”).
- On
9 September 2002 the applicant applied to the Chekhov Town Council
for permission to hold a service in public between 11 a.m. and 1 p.m.
on 22 or 29 September 2002.
- On 20 September 2002 the deputy head of the Chekhov
Town Council refused permission. In particular, he stated that the
Chekhov Town Council had on many occasions informed the applicant
that it was not possible to hold services in public areas in the town
(squares, streets, parks, etc.). The applicant was advised to hold
services and other religious rites at the registered seat of the
church or on other premises owned or used by the church members.
- On
26 September 2002 the applicant challenged the refusal of the Town
Council before a court. He alleged violations of the rights to
freedom of religion and assembly.
- On
11 October 2002 the Chekhov Town Court of the Moscow Region examined
the applicant's claim and dismissed it. The court found that,
pursuant to the domestic law, public worship and other religious
rites were subject to an authorisation by a municipal authority. It
further ruled as follows:
“The contested refusal is lawful because it is
justified. As the Church of Evangelical Christians practices a
religion that is different from the religion professed by the
majority of the local residents, and having regard to the fact that
in the Chekhov district there are more than twenty religious
organisations of different denominations, a service of worship in a
public area held by one of them may lead to ... the discontent of
individuals of other denominations and public disorder.
In these circumstances, the contested acts of the
Chekhov Town Council cannot be deemed to impair the rights of the
'Christ's Grace' Church of Evangelical Christians as they do not
prevent it from holding services in religious buildings or on other
premises intended for that purpose.”
- The
applicant appealed. On 4 November 2002 the Moscow Regional Court
upheld the judgment of 11 October 2002.
II. RELEVANT DOMESTIC LAW
- The Freedom of Conscience and Religious Associations
Act (no. 125-FZ of 26 September 1997) provided that services and
other religious rites and ceremonies in public were to be performed
in accordance with the procedure established for assemblies, marches
and demonstrations (section 16).
- The
Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28
July 1988 (in force at the material time pursuant to Presidential
Decree no. 524 of 25 May 1992) provided that organisers of an
assembly were to serve written notice on the municipal authorities no
later than ten days before the planned assembly (section 2). The
authority was to give its response no later than five days before the
assembly (section 3). An assembly could be banned if its purpose was
contrary to the Constitution or threatened public order or the
security of citizens.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 11 OF THE
CONVENTION
- The applicant complained under Articles 9 and 11 of
the Convention that he had not been allowed to hold a service of
worship in the town park.
- The Court notes that under Russian law, services of
worship in public were to be performed in accordance with the
procedure established for assemblies (see paragraph 12 above). The
ban was imposed under the rules and procedures governing public
assemblies and setting limitations on freedom of assembly. The issue
of freedom of belief cannot in this case be separated from that of
freedom of assembly. The Court therefore considers that Article 11
takes precedence as the lex specialis for assemblies and will
deal with the case principally under Article 11, whilst interpreting
it in the light of Article 9 (see, for a similar approach, Pendragon
v. the United Kingdom, no. 31416/96, Commission decision of
19 October 1998; Rai, Allmond and “Negotiate Now” v.
the United Kingdom, no. 25522/94, Commission decision of
6 April 1995; and Plattform “Ärzte für das
Leben” v. Austria, no. 10126/82, Commission
decision of 17 October 1985).
- Articles
9 and 11 of the Convention provide:
Article 9
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
Article 11
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others ...
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others ...”
A. Whether there has been an interference
- The
applicant submitted that the refusal of permission to organise a
service of worship in the town park constituted an interference with
his rights under Articles 9 and 11 of the Convention.
- The
Government argued that the applicant had not been prevented from
holding a service of worship in religious buildings or on other
premises intended for that purpose. He had only been refused
permission to hold a service of worship in a public place.
- The
Court observes that the applicant complained about the refusal of
permission to hold a service in the town park on 22 or 29 September
2002 rather than about any restrictions on his right to practise
religion in general. In these circumstances, the Government's
argument that the applicant could hold services in religious
buildings or on other premises intended for that purpose is
immaterial to the present case.
- The
applicant attempted to organise a religious assembly in the town
park. He applied to the town council for authorisation. However, the
town council refused authorisation. The refusal of authorisation to
organise an assembly constituted an interference with the applicant's
rights under Article 11 interpreted in the light of Article 9.
B. Whether the interference was justified
1. The submissions of the parties
- The
applicant argued that the interference with his freedom of religion
and assembly was not prescribed by law because the deputy head of the
Chekhov Town Council had not given reasons for the refusal. If the
authorities considered that holding an assembly in the place he had
proposed might disturb public order, they could have suggested
another place or time. An unqualified ban on services of worship in
public places had been disproportionate. He further argued that the
authority's apprehension that the peaceful assembly might disturb
public order was unsubstantiated. In 1998 the church had held
services in public in the town of Chekhov which had not caused any
disturbances. Other denominations, such as the Russian Orthodox
Church, were allowed to hold services in public and such worship did
not provoke any disorder in the town either.
- The
Government argued that at the material time the domestic law provided
that a person wishing to hold an assembly or a service of worship in
a public place should obtain prior authorisation from the
authorities. In the present case, the decision to refuse
authorisation was examined by the domestic courts, which found it to
have been lawful and justified. In any event, in 2004 a new law on
assemblies, meetings, demonstrations, marches and picketing was
enacted and the requirement of authorisation was replaced by simple
notification.
- The
Government further submitted that services of worship outside
religious buildings aimed to influence the beliefs of others. The
majority of the population of the Chekhov district professed other
religions and the authorities had to protect their freedom of
conscience and religion. The Government referred to the Kokkinakis
case, where the Court held that in democratic societies, in which
several religions coexist within one and the same population, it may
be necessary to place restrictions on freedom of religion in order to
reconcile the interests of the various groups and ensure that
everyone's beliefs are respected (see Kokkinakis v. Greece,
judgment of 25 May 1993, Series A no. 260-A, p.18, § 33).
Eighteen religious organisations of different denominations existed
in the Chekhov district and a service in a public area held by one of
them might have led to the discontent of individuals of other
denominations and public disorder.
2. The Court's assessment
(a) General principles
- The
Court has recognised that the right of peaceful assembly enshrined in
Article 11 is a fundamental right in a democratic society and, like
the right to freedom of thought, conscience and religion, one of the
foundations of such a society (see Djavit An v. Turkey,
no. 20652/92, § 56, ECHR 2003 III, and
Kokkinakis, cited above, p. 17, § 31). As has
been stated many times in the Court's judgments, not only is
democracy a fundamental feature of the European public order but the
Convention was designed to promote and maintain the ideals and values
of a democratic society. Democracy, the Court has stressed, is the
only political model contemplated in the Convention and the only one
compatible with it. By virtue of the wording of the second paragraph
of Article 11, and likewise of Article 9 of the Convention, the
only necessity capable of justifying an interference with any of the
rights enshrined in those Articles is one that may claim to spring
from a “democratic society” (see Christian Democratic
People's Party v. Moldova, no. 28793/02, §§
62-63, ECHR 2006 ...).
-
The right to freedom of assembly covers both private meetings and
meetings in public thoroughfares as well as static meetings and
public processions; in addition, it can be exercised by individuals
participants of the assembly and by those organising it (see Adalı v.
Turkey, no. 38187/97, § 266, 31 March 2005).
States must refrain from applying arbitrary measures capable of
interfering with the right to assemble peacefully. In view of the
essential nature of freedom of assembly and association and its close
relationship with democracy there must be convincing and compelling
reasons to justify an interference with this right (see Ouranio
Toxo v. Greece, no. 74989/01, § 36,
20 October 2005, with further references).
- In
carrying out its scrutiny of the impugned interference, the Court has
to ascertain whether the respondent State exercised its discretion
reasonably, carefully and in good faith. It must also 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 Article 11 and, moreover, that they based
their decisions on an acceptable assessment of the relevant facts
(see, among other authorities, Christian Democratic People's
Party, cited above, § 70).
- Furthermore, although the essential object of Article
11 is to protect the individual against arbitrary interference by
public authorities with the exercise of the rights protected, there
may in addition be positive obligations to secure the effective
enjoyment of these rights (see Wilson, National Union of
Journalists and Others v. the United Kingdom, nos. 30668/96,
30671/96 and 30678/96, § 41, ECHR 2002 V).
(b) Application of the above principles to
the present case
- The
Court welcomes the amendment in 2004 of the law on public assemblies,
to which the Government referred, whereby the requirement of prior
authorisation was replaced by simple notification of the intended
assembly. The Court notes, however, that these developments occurred
after the events at issue in the present case. At the material time
the conduct of public assemblies was regulated by the 1988 Decree,
which gave the authorities power to ban assemblies deemed to be a
threat to public order or the security of citizens. In the instant
case the Town Council made use of that power and denied permission
for the applicant's assembly. The Court accepts that the interference
was “prescribed by law” and that it pursued “a
legitimate aim” within the meaning of paragraph 2 of Articles 9
and 11, that of preventing disorder. It remains to be determined
whether it was “necessary in a democratic society”.
- The
domestic courts justified the necessity of the interference by
reference to the fact that the applicant's church practised a
religion that was different from the religion professed by the
majority of the local residents. They considered that a public
religious assembly organised by the Christ's Grace church could cause
discontent among adherents of other religious denominations and
provoke public disorder. The Court is not convinced by that argument.
- Referring
to the hallmarks of a “democratic society”, the Court has
attached particular importance to pluralism, tolerance and
broadmindedness. In that context, it has held that although
individual interests must on occasion be subordinated to those of a
group, democracy does not simply mean that the views of the majority
must always prevail: a balance must be achieved which ensures the
fair and proper treatment of minorities and avoids any abuse of a
dominant position (see Gorzelik and Others v. Poland [GC],
no. 44158/98, § 90, 17 February 2004). The Court
further reiterates that in a democratic society, in which several
religions coexist within one and the same population, it may be
necessary to place restrictions on the “freedom to manifest
one's religion or belief” in order to reconcile the interests
of the various groups and ensure that everyone's beliefs are
respected. However, in exercising its regulatory power in this sphere
and in its relations with the various religions, denominations and
beliefs, the State has a duty to remain neutral and impartial. What
is at stake here is the preservation of pluralism and the proper
functioning of democracy, and the role of the authorities in such
circumstances is not to remove the cause of tension by eliminating
pluralism, but to ensure that the competing groups tolerate each
other (see Metropolitan Church of Bessarabia and Others v.
Moldova, no. 45701/99, §§ 115 and 116, ECHR
2001 XII, with further references).
- In
the light of the above principles, the Court emphasises that the mere
fact that the Evangelical Christian religion was practised by a
minority of the town residents was not capable of justifying an
interference with the rights of followers of that religion (see,
mutatis mutandis, Stankov and the United Macedonian
Organisation Ilinden v. Bulgaria, nos. 29221/95 and
29225/95, § 89, ECHR 2001 IX). It would be
incompatible with the underlying values of the Convention if the
exercise of Convention rights by a minority group were made
conditional on its being accepted by the majority. Were it so a
minority group's rights to freedom of religion, expression and
assembly would become 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, pp. 15-16, § 33).
- The
Court further notes the indisputably peaceful character of the
religious assembly planned by the applicant. There was no evidence
that any of the participants would incite or resort to violence.
Public disorder could thus only be caused by those members of the
town population who were prepared to oppose forcefully the meeting of
the Evangelical Christians in the town park and to force the
followers of that religion out of the public arena by means of
threats and violence. The Court stresses in this connection that
freedom of assembly as enshrined in Article 11 of the Convention
protects a demonstration that may annoy or give offence to persons
opposed to the ideas or claims that it is seeking to promote (see
Stankov, cited above, § 90). The participants must
be able to hold the demonstration without having to fear that they
will be subjected to physical violence by their opponents. It is thus
the duty of Contracting States to take reasonable and appropriate
measures to enable lawful demonstrations to proceed peacefully (see
Plattform “Ärzte für das Leben” v.
Austria, judgment of 21 June 1988, Series A no. 139, p.
12, §§ 32 and 34).
- Assuming
that there existed a threat of a violent counter-demonstration, the
Court observes that the domestic authorities had a wide discretion in
the choice of means which would have enabled the religious assembly
planned by the applicant to take place without disturbance (see
Plattform, loc. cit.). However, there is no indication
that an evaluation of the resources necessary for neutralising the
threat was part of the domestic authorities' decision-making process.
Instead of considering measures which could have allowed the
applicant's religious assembly to proceed peacefully, the authorities
imposed a ban on it. They resorted to the most radical measure,
denying the applicant the possibility of exercising his rights to
freedom of religion and assembly. It moreover appears from the
wording of the refusal that the applicant's requests for permission
to hold a service of worship in public had already been rejected on
many occasions without detailed reasons (see paragraph 8 above). Such
a comprehensive ban cannot be considered justified.
- Finally,
the Court is not convinced by the Government's argument that it was
necessary to restrict the applicant's right to freedom of assembly
and religion for the protection of those whom he was allegedly trying
to convert. Under Article 9, freedom to manifest one's religion
includes the right to try to convince one's neighbour, failing which,
moreover, “freedom to change one's religion or belief”,
enshrined in that Article, would be likely to remain a dead letter
(see Kokkinakis, cited above, p. 17, § 31). It has
not been shown that unlawful means of conversion, infringing the
rights of others, have been or were likely to be employed by the
applicant (compare Stankov, cited above, § 105). In
any event, that argument was never relied upon by the domestic
authorities.
- The Court concludes that the ban on the religious
assembly planned by the applicant was not “necessary in a
democratic society”. There has accordingly been a violation of
Article 11 of the Convention interpreted in the light of Article 9.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN IN CONJUNCTION WITH ARTICLES 9 AND 11
- The
applicant complains that he was treated differently from members of
other religious denominations. The Court considers that this
complaint falls to be examined under Article 14 of the Convention, in
conjunction with Articles 9 and 11. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government submitted that the applicant's argument that other
denominations enjoyed unrestricted freedom to hold services of
worship in public was speculation not supported by any evidence. No
service of worship had been held in public by any religious
denomination in the Chekhov district in 2002.
- The
applicant argued that other denominations, such as the Russian
Orthodox Church, enjoyed unrestricted freedom to hold services of
worship in public.
- The
Court reiterates that Article 14 has no independent existence, but
plays an important role by complementing the other provisions of the
Convention and the Protocols, since it protects individuals placed in
similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive
Article of the Convention or its Protocols has been invoked both on
its own and together with Article 14 and a separate breach has been
found of the substantive Article, it is not generally necessary for
the Court to consider the case under Article 14 also (see The
Moscow Branch of the Salvation Army v. Russia, no. 72881/01,
§ 100, ECHR 2006 ..., with further references).
- In
view of the Court's conclusion that there has been a violation of
Article 11 of the Convention in the light of Article 9, no separate
examination under Article 14 is required (see, for example,
Metropolitan Church of Bessarabia, cited above, § 134,
and Sidiropoulos and Others v. Greece, judgment of
10 July 1998, Reports of Judgments and Decisions 1998 IV,
p. 1619, § 52).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 100,000 euros (EUR) in respect
of non-pecuniary damage.
- The Government considered that the claim was
“far-fetched”, unsubstantiated and “undoubtedly
fabulous”. The finding of a violation would in itself
constitute sufficient just satisfaction.
- The Court accepts that the applicant has suffered
non-pecuniary damage – such as distress and frustration
resulting from a ban on a religious assembly imposed in breach of
Article 11 interpreted in the light of Article 9 – which
is not sufficiently compensated for by the finding of a violation of
the Convention. However, it finds the amount claimed by the applicant
excessive. Making its assessment on an equitable basis, the Court
awards the applicant EUR 6,000 under this head, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 11 of the Convention interpreted in the light of Article
9;
- Holds that it is not necessary to examine the
applicant's complaint under Article 14;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable on that amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
