Communicated on 6 July 2017
THIRD SECTION
Application no. 27227/17
Donald Jay OSSEWAARDE
against Russia
lodged on 30 March 2017
STATEMENT OF FACTS
The applicant, Mr Donald Jay Ossewaarde, is a citizen of the United States of America (USA) who was born in 1960 and who has been living in Oryol, Russia, since 2005 on the basis of renewable residence permits. He is represented before the Court by Ms T. Glushkova, Ms T. Chernikova, Mr D. Shedov, and Mr K. Koroteyev, lawyers practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Baptist Christian. Since moving to Oryol in Russia, he and his wife have regularly gathered people at their home for prayer and Bible reading. The applicant personally invited people to those meetings or put invitations in people’s mailboxes.
On Sunday, 14 August 2016, as the applicant was holding a Bible‑reading meeting in his home, the police officers walked in through the door that was not locked. The police waited for the end of the service to ask questions and take statements from the applicant and the participants. At about 1 p.m. they took the applicant to the police station to take his fingerprints.
At the station the applicant was shown a statement by a “concerned resident” who had complained to the police about “foreign religious cultists” pasting Gospel tracts to a bulletin board at her apartment block. In the subsequent proceedings, it transpired that the “concerned resident” Ms B. was a deputy chairman of the Oryol Regional Government in charge of security matters.
The police charged the applicant with the offence under Article 5.26(5) of the Code of Administrative Offences for placing invitations to religious services on bulletin boards, which was interpreted as spreading of information about his religion among non-members of his religious group, and for conducting “missionary activities” without notification of establishment of a religious group.
After two-and-a-half hour’s detention at the police station the applicant was taken before the Zheleznodorozhnyy District Court in Oryol. He pleaded his innocence, maintaining that he was not a member of any religious association in Russia and could not exercise “missionary activities” within the meaning of the Religions Act.
At approximately 7 p.m. the District Court convicted the applicant for conducting “missionary activities” without having notified the authorities of establishing a religious group, and fined him 40,000 Russian roubles.
On 30 September 2016 the Oryol Regional Court rejected the applicant’s appeal.
On 28 February 2017 the Constitutional Court dismissed the applicant’s constitutional complaint. It held in particular that it was not competent to determine the question of fact whether the applicant “had been a member of any religious association and carried out missionary activities on its behalf by involving other persons into the activities of the religious association or whether he simply disseminated his religious beliefs in public”.
B. Relevant domestic law
Chapter III.1 of the Religions Act (Law no. 125-FZ of 26 September 1997), added by Law no. 374-FZ of 6 July 2016, regulates “missionary activities” (миссионерская деятельность). The notion of “missionary activities” is defined in section 24.1(1) as “activities of a religious association directed at spreading the information about its faith among those who are not members or followers of that association with the purpose of bringing in new members or followers of the religious association”. Section 24.2(1) requires individuals who exercise missionary activities on behalf of a religious group to carry on them a decision by the general assembly of the religious group authorising him or her to exercise such activity. The decision must indicate the details of the written confirmation of receipt and registration issued by the regional department of justice upon receipt of a notification of the establishment of that religious group and the beginning of its activities.
Article 5.26 of the Code of Administrative Offences, as amended by Law no. 374-FZ of 6 July 2016, concerns punishable breaches of the legislation on the freedom of conscience and religion. In particular, paragraph 4 makes it an offence to carry out missionary activities in breach of the applicable legislation. Pursuant to paragraph 5, the same offence, if committed by a foreign national, is punishable with a fine of up to 50,000 Russian roubles and an optional administrative removal from Russia.
COMPLAINTS
The applicant complains under Articles 9 and 11 of the Convention that he was punished for manifesting his religion in community with others. He also invokes Article 14 in conjunction with the above provisions to complain about a difference in treatment between Russian and foreign nationals under Article 5.26 of the Code of Administrative Offences.
The applicant also complains under Article 5 § 1 of the Convention that his detention at the police station was not necessary because nothing prevented the police for drawing up the offence record on the spot.
QUESTIONS TO THE PARTIES
1. Was the applicant’s escorting to the police station and his detention there compatible with the requirements of Russian law and Article 5 § 1 of the Convention (see Lashmankin and Others v. Russia, no. 57818/09 and 14 others, § 489, 7 February 2017, and the case-law cited therein)?
2. Was there a violation of Article 9 or 11 of the Convention in connection with the applicant’s prosecution for the organisation of Bible-reading meetings? In particular, were the legal provisions sufficiently foreseeable in their application? Did the Russian courts draw a distinction between “missionary activities” carried out by a religious group and individual evangelism and did they indicate any facts buttressing their conclusion (see Kokkinakis v. Greece, 25 May 1993, §§ 48-49, Series A no. 260‑A)?
3. Does the difference in treatment between Russian and foreign nationals under sections 4 and 5 of Article 5.26 of the Code of Administrative Offences amount to a breach of Article 14 of the Convention, read in conjunction with Articles 9 or 11?
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