Another Strasbourg judgment which Putin may wish to ignore – Scientologists win

5 October 2014 by

scientologyChurch of Scientology v. Russia, ECtHR, 2 October 2014 read judgment

Amidst all the current posturing about the Strasbourg Court and how we would like to ignore its judgments we don’t like in future, one cannot help thinking about the old rule of behaviour that your enemy’s enemy is your friend. Western interests have been caught out, time and time again, when they intervene/interfere (insert, as appropriate) in the Middle East, and their enemy’s friend often turns out to be far from its friend.

Cue this case. Scientologists may not be widely favoured, in the UK, but then neither is Russia. And Russia would so love to ignore the slew of Strasbourg judgments against it – think Kordokovsky (€1.6bn, here), Chechnya and the environmental claims (here) against the various businesses which had so seamlessly ended up in the oligarchs’ pockets. But do we really want to feed Putin a line to get out of his difficulties in Strasbourg? This week’s back of an envelope announcements from the Conservative party conference about Strasbourg decisions would appear to do so.

The trigger for this claim in Strasbourg by the Church was the Russian courts’ decision that they were unwilling to allow the Scientologists to register their operations as a legal entity. And, as we shall see, Strasbourg thought that was not on.

Quite often in the past, Scientologists, the world over, have sought religious recognition for their teachings. Often, this had been knocked back, due to some scepticism about L Ron Hubbard, and the motives which he and certain of his followers may have had. Money often lurks there, but then that is far from unique in church history. And at least LRH’s dicta includes “Human rights must be made a fact, not an idealistic dream.” So they must be alright, then.

Usually, the issue in these Scientology cases has been tax treatment. Here, by contrast, recognition by the Moscow authorities led to the loss of such basic rights such as the rights to own or rent property, to maintain bank accounts, to ensure judicial protection of the community, to establish places of worship, to hold religious services in places accessible to the public, or to produce, obtain and distribute religious literature. As the ECtHR said, these abilities were essential for exercising the right to manifest one’s religion.

The St Petersburg Scientologists, some of whom had started in 1984 (when other belief-systems were somewhat predominant) complained about a rule (in the Religions Act) which said that a religion could not be recognised until it had been in existence for 15 years or more. The authorities and the courts were not satisfied that the Scientologists could show this – there had been some schism in the early years. Strasbourg had previously been sceptical about these 15 year rules. One does not have to have much religious sensitivity to appreciate that there is no obvious reason why the earlier branch of a belief (think about the various strands of monotheism) should have an immediate institutional advantage before its schismatics can start to catch up. And the Scientologists were able to point to domestic parliamentary records showing that the motivation behind the adoption of the Religions Act had been the desire to introduce a legislative regime that would discriminate against “foreign” minority religious groups in favour of “traditional” religions. UKIP law, I suppose.

The Strasbourg Court, in ruling in favour of the Scientologists, considered that there was a breach of Article 9 (freedom of religion) when read with Article 11 (freedom of association). Any interference with those rights had to be prescribed by law. This requires not only that the interference should have some basis in domestic law, but it also

refers to the quality of the law in question, which must be sufficiently accessible to the person concerned and foreseeable as to its effects, that is to say, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct…

The domestic court had imposed an onerous burden of proof upon the applicants. It concluded that they were unable to adduce evidence showing that no other groups of Scientologists existed in St Petersburg and that the composition of the applicant group had remained continuous and stable throughout the entire fifteen-year period.

But, as Strasbourg observed, the domestic court did not refer to any legal provision that would require the applicants to submit such evidence and no legal basis for that requirement was cited.

A good example of why the rule of law requires more than a set of statutes saying this or that, and some courts resolving disputes about them. The ECtHR thought that the domestic court’s

requirement to produce such evidence was arbitrary and unforeseeable in its effects for the applicants.

Hence, none of the grounds invoked by the domestic courts for rejecting the Scientologists’ application was based on an “accessible and foreseeable interpretation of domestic law.”

The ECtHR thereupon found a breach of Article 9 when read with Article 11, and awarded the Scientologists €7,500, entirely unreasoned, of course.

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