June 23, 2010
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) and “it 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.