Communicated on 15 March 2018
FIRST SECTION
Application no. 41817/10
CHRISTIAN RELIGIOUS ORGANIZATION OF JEHOVAH’S WITNESSES IN THE NKR and Sargis AVANESYAN
against Armenia
lodged on 23 July 2010
STATEMENT OF FACTS
The applicants are the Christian Religious Organisation of Jehovah’s Witnesses NKR, a religious community established in the Republic of Nagorno Karabakh in 1993 (“the applicant community”) and an Armenian national Mr Sargis Avanesyan, who was born in 1962 and is the community elder living in Stepanakert (“the applicant”). They are represented before the Court by Mr A. Carbonneau and Mr R. Khachatryan, lawyers practising in Strasbourg and Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
Jehovah’s Witnesses have been present in the unrecognised Republic of Nagorno Karabakh (the NKR) since 1993. At the material time they had approximately five hundred members.
Since 8 October 2004 Jehovah’s Witnesses have been a registered religious organisation in the Republic of Armenia.
On 26 November 2008 the NKR Law on the Freedom of Conscience and on Religious Organisations (the Law) was enacted.
On 20 June 2009 the General Assembly of the applicant community held a meeting. It decided, inter alia, to apply for legal registration by submitting the required documents, including those necessary for the mandatory expert report, and elected the applicant as the Chairman of its Council.
2. The first attempt to obtain state registration
On 22 June 2009 the applicant applied to the NKR Government for state registration by virtue of Article 14 of the Law, seeking an expert conclusion as to whether the applicant community fulfilled the requirements of Article 5 of the Law.
On 6 July 2009 the Chief Minister of the NKR Government Staff provided the applicant with an expert opinion of 6 July 2009 prepared by A.S., Chief of the Department for National Minorities and Religious Affairs of the NKR Government Staff (the Expert Opinion).
The relevant parts of the Expert Opinion read as follows:
“... having sufficient information about the more than fifteen years’ activity of ... [the applicant community] in [Nagorno Karabakh], we find that the ministers (preachers) use a number of methods of psychological influence towards believers...
Ministers (preachers) of [the applicant community] use mainly psychological methods of persuasion and inspiration. When these methods are used, a person comes under total influence, that is his mentality, behaviour, stereotype are transformed.
...
The main method of psychological influence is manipulation, social provision and support which keep a person dependent. A dependent person is convinced of unreal opportunities and actions, which creates irrational ideas based on hope, methods of psychological inspiration and persuasion from which new faith is being formed. Such influence results in emotional regression and a motivation for deep layers of subconsciousness which is dangerous for emotional stability and integrity... Believers are presented with a line of seemingly blameless actions which gradually attract an individual, making him obedient and dependent, depriving him of personal will.
...
According to the submitted documents, Jehovah’s Witnesses assure that they do not engage in soul hunting (religion hunting) as stated in Article 8 of [the Law] based on the interpretation of the word “proselytism” by the European Court of Human Rights.
The expert group finds that the words “soul hunting” (“religion hunting”) and “proselytism” do not have the same meaning and therefore it relies on [the Law]...
According to Article 17 of [the Law] only the Armenian Apostolic Holy Church has the right to preach freely and spread its beliefs in the territory of Nagorno Karabakհ. All other religious organisations having state registration preach within the circle of their own believers, otherwise it is regarded as soul hunting (religion hunting).
...
According to the submitted documents, the religious organisation of “Jehovah’s Witnesses” is Christian...
The expert group finds that the religious organisation of “Jehovah’s Witnesses” cannot be Christian because the presented documents do not state that the organisation accepts the Nicene Creed, which is a prerequisite for being a Christian organisation or church.
...
Blood transfusion: ... Jehovah’s Witnesses accept reliable non-blood alternative medical treatment methods which are increasingly recognised in the medical field.
This approach of “Jehovah’s Witnesses” with regard to blood transfusion is the reason why hundreds of believers every year are deprived of medical care and die.
...
Beliefs – civic duties
... Only on those rare occasions when the government demands what is in direct conflict with what God commands do Jehovah’s Witnesses refuse to comply. Their publications and public ministry encourage everyone to be law-abiding.
Neutrality: ...Jehovah’s Witnesses do not participate in the politics or war of any nation. Their stand of Christian neutrality is well established in history...
The expert group considers that such interpretations of “Jehovah’s Witnesses” of “civic duties” and “neutrality” result in the refusal of their believers to perform some of their civic duties towards their Native Land. In particular, “Jehovah’s Witnesses” residing in Artsakh do not participate in presidential or parliamentary elections and the elections of local self-government bodies which are conditions for creating a civil society and establishing genuine democracy.
The activity of certain active members of “Jehovah’s Witnesses” in Nagorno Karabakh since 1993 (especially during the years of war) is equal to weakening and disrupting of defence of the country at war...
...
The expert group refrains from examining purely theological issues but, based on the above stated, concludes once again that by their ideology “Jehovah’s Witnesses” are far from being a Christian organisation.
The presented documents contain information concerning the head office of the community, exact number and locations of places of worship.
...
The Chairman of the [applicant community] has submitted a list of 114 members who are more than 18 years old, according to the prescribed order.
Conclusion
The documents submitted by the Chairman of the [applicant community] do not satisfy the requirements of Article 5 of [the Law].”
On 9 July 2009 the applicant and two other members of the applicant community applied on its behalf to the State Registry Department of the NKR Ministry of Justice for state registration.
On 3 August 2009 the State Registry Department rejected the applicant community’s application, relying on the Expert Opinion.
On 3 September 2009 the applicant community lodged a claim with the NKR Common Jurisdiction (Administrative) Court (the Administrative Court) seeking the annulment of the State Registry Department’s decision of 3 August 2009 and an order for state registration.
On 7 September 2009 the Administrative Court declared the applicant community’s claim inadmissible on the ground that it was not a legal entity having state registration. It also stated that the applicant community had failed to pay the correct amount of court fees.
On 14 September 2009 the applicant lodged an identical claim with the Administrative Court on behalf of the applicant community.
By decision of 15 September 2009 the Administrative Court admitted the applicant’s claim.
On 28 October 2009 the Administrative Court rejected the applicant’s claim, finding that the State Registry Department’s refusal to register the applicant community had been lawful. In doing so it stated, in particular, the following:
“Having considered the claimant’s argument that the decision of the State Registry violates the NKR Jehovah’s Witnesses’ rights and freedoms of thought, conscience and religion, association, peaceful assembly, the prohibition of discrimination on the ground of religion guaranteed by [the Convention], International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the NKR Constitution and [the Law], the Administrative Court comes to the conclusion that it is unsubstantiated, since the decision of the NKR Ministry of Justice State Registry Department refusing the registration of [the applicant community] as a legal entity has no connection whatsoever with the rights and freedoms of individuals or their group, including NKR citizens having as religious conviction the faith of “Jehovah’s Witnesses”... therefore, the refusal to register as a legal entity the association formed by individuals ...does not yet mean that the rights and freedoms of these individuals are restricted or violated ...”
The applicant lodged an appeal on behalf of the applicant community which was returned by the NKR Supreme Court (the Supreme Court) on procedural grounds, with a time-limit for correcting the errors. The corrected appeal was re-filed with the same court, within the time-limit set.
By the decision of 12 January 2010 the Supreme Court decided to admit the appeal for examination.
On 28 January 2010 the Supreme Court quashed the judgment of 28 October 2009 and terminated the proceedings on the ground that the applicant was not authorised to act on behalf of the applicant community, which was not a registered organisation, and that the State Registry Department, being a structural sub-division of the NKR Ministry of Justice, could not act as an independent party to the proceedings. The Supreme Court also stated that in such circumstances it would not address the arguments raised in the appeal. This decision was final and not subject to appeal.
In March and April 2010 the police raided religious meetings of Jehovah’s Witnesses held in private homes in the cities of Martakert, Askeran and Stepanakert.
According to the applicants, in April and May 2010 five Jehovah’s Witnesses were arrested and charged with an administrative offence.
3. Subsequent attempts to obtain state registration
On 29 June 2010 the applicant submitted an application to the Chief Minister of NKR Government Staff requesting an expert study, as required by Article 14 of the Law. It was requested that this study be carried out by an independent expert. The applicant also submitted authority forms, signed by one hundred members of the applicant community, conferring on him the right to act on their behalf in order to obtain state registration. It appears that no response followed within the period of twenty days set out in Article 14 of the Law.
On 16 August 2010 the applicant submitted an application for state registration of the applicant community to the Head of the State Registry Department stating, inter alia, that the Government had failed to provide a new expert opinion within the statutory time-limit; hence the Expert Opinion was instead being submitted to support the application for state registration.
On 3 September 2010 the State Registry Department rejected the application on the ground that no expert opinion had been submitted.
On 15 September 2010 the applicant lodged a claim with the Administrative Court on behalf of the applicant community, challenging the failure by the Government to provide an expert opinion.
On 8 November 2010 the applicant lodged another claim with the Administrative Court on behalf of the applicant community, challenging the denial of registration by the State Registry Department of the NKR Ministry of Justice in its decision of 3 September.
On 3 December 2010 the Administrative Court decided not to admit the claim challenging the denial of registration. By another decision of the same date the Administrative Court rejected the claim concerning the failure to provide an expert opinion.
It appears that the applicant’s subsequent appeals against the Administrative Court’s above decisions were declared inadmissible.
On 2 February 2012 the applicant applied, on behalf of the applicant community, to the NKR Government seeking the mandatory expert opinion required for its state registration.
On 9 February 2012 the Chief Minister of the NKR Government Staff replied to the applicant stating, in particular, the following:
“... you have not submitted any new facts or arguments. You have been provided with answers concerning the same question, several times. Moreover, your religious group has not eliminated the errors and omissions mentioned in [the Expert opinion] of 6 July 2009. Therefore ... we decline your request to be provided with an expert conclusion.”
On 29 February 2012 the applicant filed an application for state registration on behalf of the applicant community.
On 23 March 2012 the Head of the State Registry Department informed the applicant that no new decision on the registration of the applicant community was made because there was a valid decision concerning the same matter, that is the decision of 3 September 2009 on refusal of state registration.
On 1 June 2012 the applicant, acting on behalf of the applicant community and 102 members of the applicant community, co-claimants, lodged a claim with the Administrative Court challenging the denial of registration.
On 7 June 2012 the Administrative Court decided not to admit the claim stating, in particular, the following:
“Having examined the decision of the NKR Supreme Court dated 28 October 2010 based on [the applicant’s] claim introduced on 14 September 2009 and [the applicant’s] claim as of 1 June 2012, it becomes clear that the parties in the previous and the present case are the same while the subject matter and the grounds for the claim are identical, therefore the court finds that the claim should not be admitted.”
The applicant’s appeal against this decision was not admitted for examination by the Court of Appeal which was contested before the Supreme Court.
Eventually by its decision of 16 August 2012 the Supreme Court declared the appeal on points of law submitted by the founding members of the applicant community, including the applicant, inadmissible for lack of merit. The decision stated, in particular, the following:
“The Supreme Court finds that the appeal on points of law does not contain any arguments concerning substantial violations or wrong interpretation of the provisions of substantive or procedural law and there are no grounds for admitting the claim for examination ...
This decision enters into force from the moment of its delivery, is final and not subject to appeal.”
B. Relevant domestic law
The law of the Nagorno-Karabakh Republic on the Freedom of Conscience and on Religious Organisations
According to Article 1, citizens’ freedom of conscience and expression of faith is guaranteed in the Republic of Nagorno-Karabakh. Each citizen decides freely his attitude towards religion, and has the right to profess a desired religion or not to profess any religion, to engage in religious rites individually or together with other citizens.
Article 5 § 1 provides that a citizens’ association is recognised as a religious organisation if it satisfies the following criteria:
(1) it is not contrary to the provisions of Article 3 of this law;
(2) it is based on a historically recognised holy book;
(3) its doctrines form part of the international contemporary religious-ecclesiastical communities;
(4) it is free from materialism and is intended for purely spiritual goals;
(5) it has at least 100 members. Children under 18 cannot become members of a religious organisation, irrespective of their being involved in the religious rites and other circumstances.
According to Article 6, the following religious organisations operate in the Republic of Nagorno-Karabakh:
(1) The Armenian Apostolic Holy Church (abbreviated to “Armenian Church”) with its traditional organisations;
(2) Other religious organisations, which are established and function within the circle of their respective believers in accordance with their own property and charter.
Article 14 provides that a religious community or an organisation is recognised as a legal entity from the moment of being registered in accordance with the order defined by the state registry’s central body. Along with the documents required for the registration of a religious organisation, the conclusion of the state authorised body on religious affairs regarding the fulfilment of requirements of Article 5 should be presented to the state registry for legal entities. In order to obtain the experts’ conclusion, the religious organisation must submit the documents that fulfil the provisions of Article 5 of this Law. The conclusion is issued no later than within twenty days following the date of the submission of the application.
According to Article 25, religious organisations are obliged to register or re-register within six months after this Law enters into force.
COMPLAINTS
The applicants complain under Articles 9 and 11 of the Convention of the continued refusal of the NKR authorities to register the applicant community as a religious organisation.
They further complain under Article 14, read in conjunction with Articles 9 and 11 of the Convention, that they have been discriminated against on account of their position as a religious minority in the NKR.
QUESTIONS TO THE PARTIES
1. Does Armenia have jurisdiction over the matters complained of, within the meaning of Article 1 of the Convention (see Muradyan v. Armenia, no. 11275/07, §§ 126 and 127, 24 November 2016)?
2. Does the Nagorno Karabakh authorities’ refusal to register the applicant community to date constitute an interference with the applicant community’s freedom of association, within the meaning of Article 11 § 1 of the Convention read in the light of Article 9 of the Convention? If so, is the interference justified in terms of Article 11 § 2 of the Convention? (see, in particular, Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, §§ 161‑182, 10 June 2010)
3. Has the applicant community suffered discrimination in the enjoyment of its Convention rights, contrary to Article 14 of the Convention read in conjunction with either Article 9 or 11?
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