Jehovah’s Witnesses of Moscow v. Russia: Strange considerations, but good conclusion

On the 10th of June, the ECtHR issued a judgment about the religious community of Jehovah’s Witnesses of Moscow. In this case, the applicants firstly complained of a breach of article 9 of the Convention since the religious community was dissolved and its activities were permanently banned. The dissolution was ordered following allegations for luring minors into religious associations against their will and without the consent of their parents and for coercing persons into destroying the family, infringing the personality, rights and freedoms of citizens; inflicting harm on the health of citizens; encouraging suicide or refusing on religious grounds medical assistance to persons in life- or health-threatening conditions; and inciting citizens to refuse to fulfil their civil duties. The District Court found that the applicant community violated the right to freedom to choose one’s religion by resorting to active proselytising and “mind control”. The second complaint of the applicants was that the refusal for their re-registration constituted a breach or article 11 ECHR. The Court unanimously found a violation on both complaints.

Although I agree with the outcome in this case I find some parts of the reasoning very disturbing. Firstly I don’t know what to think about the formulation of “commonly known” arguments and generalizing considerations the Court makes in this judgment like “It is true that friction often exists in marriages where the spouses belong to different religious denominations or one of the spouses is a non-believer” (111) andit is commonly known that religious experiences are a powerful source of emotions and crying may come from the joy of being united with the divine” (§145).

What disturbs me most is the following paragraph:

143.  The Russian courts decided that participation in the activities of the applicant community had been damaging for the health of its followers because they had refused blood transfusions and also experienced strong emotions and personality changes.

144.  The Court observes, on a general note, that the rites and rituals of many religions may harm believers’ well-being, such as, for example, the practice of fasting, which is particularly long and strict in Orthodox Christianity, or circumcision practised on Jewish or Muslim male babies. It does not appear that the teachings of Jehovah’s Witnesses include any such contentious practices. What is more important, by contrast with the provision that penalised the mere act of encouraging the refusal of medical assistance, the accusation of causing damage to the health of citizens required proof of actual harm to health as defined by law. (…)

Can we compare male circumcisions of Jewish and Muslim boys with the refusal of blood transfusions? Can we compare fasting with blood transfusions? On what basis does the Court conclude that these religious practices are harmful? What message does the Court give to the many Muslims and Jews and the many non-religious people who circumcise their sons or to fasting Orthodox Christians? In my opinion, the Court is making the same mistake as the one they blame the Russian authorities for: “the accusation of causing damage to the health of citizens required proof of actual harm to health as defined by law”.

Despite this problematic part of the reasoning I fully agree with the Court’s conclusion in paragraph 159:

“(…)even if the Court were to accept that there were compelling reasons for the interference, it finds that the permanent dissolution of the applicant community, coupled with a ban on its activities, constituted a drastic measure disproportionate to the legitimate aim pursued. Greater flexibility in choosing a more proportionate sanction could be achieved by introducing into the domestic law less radical alternative sanctions, such as a warning, a fine or withdrawal of tax benefits (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 82, ECHR 2009‑…).”

The way the Court applies a “less restrictive means” approach in this case, even suggesting alternatives, can only be applauded! I personally think that in a lot of cases, if this theory would have been applied, a better balance would have been struck between the several interests at stake. I think for example of cases like Konttinen v. Finland or X. v. The UK(1981). I hope we will see more of this kind of good logical reasoning in the future case law of the Court and that we will see less generalizing considerations like the above mentioned examples.

12 thoughts on “Jehovah’s Witnesses of Moscow v. Russia: Strange considerations, but good conclusion

  1. See also Howard Gilbert, “Time to reconsider the lawfulness of ritual male circumcision”, E.H.R.L.R. 2007, 279-294.

    While not necessarily agreeing with Gilbert’s analysis, I have never understood why ritual male circumcision of minors should be treated differently from ritual female circumcision of minors.

  2. Jehovas Witnesses do not at all cause harm to themselves,the community or to anyone for that matter on the contrary i believe its the one and only organisaion that should be comended for its work and the ruling by the court was the best

  3. Personally I wonder about the obsession some people have about blood transfusion?

    There is a slight bias in the case of blood transfusion:

    Patient accepts blood and lives: The blood transfusion saved his life.
    Patient accepts blood and dies: We did everything we could.
    Patient refuses blood and lives: It’s a miracle!
    Patient refuses blood and dies: If only he had not refused.

    People tend to consider only the risk of refusal and only the benefit of accepting?

    No medical treatment is without risk, this also applies to blood transfusions and bloodless alternatives? There is enough medical literature to justify at least a preference for bloodless surgery given the significant benefits that has been shown especially in with regard to less complications, shortening the need recovery time and much higher survival rates long term.

    Recent advanced in bloodless surgery point towards another interpretation of the facts:

    Patient accepts blood and lives: It’s a miracle! Now we need to track his recovery and health.
    Patient accepts blood and dies: If only he choose bloodless surgery?
    Patient refuses blood and lives: We where lucky.
    Patient refuses blood and dies: We gave him the best quality care available.

    Given current developments I personally think that within 50 years the medical profession will consider blood transfusion as a high risk and outdate procedure, only to be attempted in the most extreme cases.

  4. Hopefully they will not grant their request for an appeal. The Russian government is harassing Jehovah’s Witnesses for no legitimate reasons. See http://jw-media.org/ for more information regarding the egregious conduct and actions of the Russian government.

  5. If you think about this, banning the Jehovah witness could be the single most Democratic thing the Russian government has ever proposed! Czarist-Communist-Democratic-Capitalist or otherwise. If you could get a show of hands across the country the Democracy of this action would be born out in the truest sense of the word, in fact it could be the single most Democratic thing any country has done for its “people” ever (basing this proposed legislation purely on the show of hands system) This religion has been given the almost exclusive rights to peddle its Judaic/ Freemasonic/Noachite bondage door to door, the only other exception being the Mormons who only do this incidentally to make the “JW’s” look less peculiar for it. The Russian people have endured a Noachite social Theocracy (the sofiets) they do not need a religious one. Please read Fritz Springmeier’s Watchtower and the Masons and his Be Wise as Serpents for some eye opening information. Cheers to Alex Putin and MERRY CHRISTMAS.

  6. Simon, JWs haven’t been given any ‘exclusive rights’ to go door to door. You’re perfectly free to go door to door telling people your recipe for raspberry sponge if you want. No law would prevent you from doing so. They haven’t been given any special ‘exclusive rights’ that you haven’t. They just have the right to freedom of speech like everyone else, and unlike you they have something to say.

  7. I am not here to state who is going to hell or who is righteous or not. I am here to ask this question: why are homosexuals so bent on calling what they want “marriage”? First, from its origin, marriage does not reflect the model that the homosexual community is presenting—-the same gender being joined as life partners. Second, the concept of “marriage” is a biblical endeavor whose standard is set with the first man and woman.

    Marriage is meant to reflect the relationship between GOD and his creation; displaying the love, provision and interaction that He communicates along with man’s role as expected to show gratitude as well as reciprocating love and interaction is only part of what’s to be mirrored. Also, in a marriage, commonly, it is rightfully assumed that a couple will reproduce or “procreate” which furthers this reflection of the marriage mirroring GOD’s dealings with man whereas GOD “creates”. Even in a case where a man and a woman are joined and cannot (whether the problem lies in the man or the woman physically) procreate it at least has the appearance of the possibility of procreation.

    The pretentious petition for “same sex marriage” is an attempt to make a mockery of faith and of its essence is to Edge God Out! Marriage holds for mankind a reminder that GOD is a Great Creator, in fact, the Creator of all things. Every time a child is born it is a reminder of the awesomeness of creation. Life is first in the man delivered to the woman for her to carry for a hopeful 9 months. This is why we call GOD a “He”, not because He has gender in His Spirit form but because He “is the first cause of a thing”. A homosexual couple cannot represent this possibility which is why it would be redefining “marriage” to ultimately become something that is not Marriage at all.

    It is evident to me that the attempt of the homosexual community is indeed pretentious. I firmly believe that those for “same sex marriage” have set out to “DESTIGMATIZE” homosexuality and are on a quest to normalize its lifestyle. In doing this they are doing to others what they don’t appreciate having done to them; they are disregarding the faith, convictions and a wholesome societal paradigm for a selfish behavioral cause AS homosexuality is a BEHAVIOR and not an ETHNICITY. Though I am not for same sex unions at all, I ask, why not call it something else if these attempts to legalize such unions have no ulterior motives?

    We must continue to argue from a faith perspective but we need to become more wise than “blunt”. Simply saying “Adam & Eve and not Adam & Steve” doesn’t cut it anymore.

    We must take the position to meanings and definitions.

    Marriage by definition means to take two separate and complimenting components and merging or blending them. Testosterone and testosterone don’t merge neither do they compliment one another. A lamp isn’t complimented by a lamp but by a bulb. A plug isn’t complimented by a plug but by a socket outlet. To compliment something is to bring something to the table that the first component does not possess of its own; this is illustrated when you try to connect “north and north” or “south and south” poles of a magnet-it doesn’t work!

    If you were covered with necklaces and you added another necklace there would be no complimenting effect. But if you have on a plain black turtleneck sweater and you add something ornamental (something different) then you have complimented the sweater, right?

    What the homosexual community is purposing is to change the very “generic” definition of marriage whether from a biblical or none biblical perspective. So then, it cannot [from a terminological standpoint] be consider marriage at all by reason of the noncomplimenting components that are attempted to be joined.

    P.S. Let’s stop calling it “Gay” which means Happy and call it as it is “homosexuality”.

    Find Article at this link: http://www.nwitimes.com/lifestyles/article_823bcc05-4d11-5377-8331-bc4246448c8b.html

    • Dear C. Burns,

      I am not sure why you posted this comment under a post on Jehovah’s Witnesses, but please allow me to respond briefly.

      First of all, I do not think it is appropriate to speak of homosexuality as something different from normal, nor to refer to it as behaviour. Instead, a person’s sexual preference is part of his/her identity and it should be acknowledged as such. It is not something trivial, but something fundamental. There is thus nothing to “destigmatize”, as you put it, nor anything to normalize. The problem lies not with those that are LGBT, but with those that regard and treat them as being different from other people, thereby often implicitly – or explicitly – considering them inferior. The latter attitude and prejudice is what needs changing, not the person who is living according to his/her own identity.

      Concerning marriage, I believe your comments illustrate very well an important point to take into account when discussing same-sex marriage: the interconnection between secularism and Christianity and thus a tendency for secularism to not treat minorities on an equal footing with the Christian majority. Ayelet Schachar has written brilliantly on this in the context of religious minorities and the secular conceptions of marriage and divorce. I am not very knowledgable on LGBT rights literature, but I am sure other authors have made the same point with regard to sexual minorities. Marriage may have found its origin in Christianity, but following the Enlightenment, it was secularised: taken over – so to speak – by a system that does not favour, nor disfavours any religion. Yet, because of its historic origin in Christianity, many people still regard marriage as only being possible between a man and a woman. That is where the problem comes in. Secularism may appear neutral, but it is not always. Both secularism and Christianity have had a chance to adapt to each other and to borrow from each other, leading to a synergy that is often ignored. Especially in the context of marriage, secularism ends up favouring Christianity, because the connection is still made to its historic origins. That is obviously in contradiction with the aim of neutrality. This is in the first place relevant for religious minorities, but your comments illustrate that it is also particularly relevant for same-sex marriage. You are unable to dissociate the Christian conception of marriage from the secularized one. Yet, this is precisely what is necessary if secularism is to truly be neutral. The Church may be opposed to same-sex marriage – I would argue that it is wrong in doing so, but it is its choice. However, I would argue that the secular State cannot be. Recognising LGBT’s identity requires granting them equal rights. This includes access to secular marriage, IVF, adoption, etc.

      P.S.: please note that what I have written is to be understood in the European (and US) context. In other regions, the references to the Enlightenment, secularism and the historic bond between secularism and Christianity will not make sense. Which does not mean people in other regions are justified in ignoring LGBT’s demands for recognition of their identity and for equal treatment.

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