Tuesday 4 November 2014

Russia had it coming

European Court of Human Rights, Strasbourg. Photo © Katrinitsa

Three times now, the European Court of Human Rights has condemned Russia for its treatment of Scientology. Critics of the movement should accept the judgments.

Last month, Europe's top court condemned Russia for refusing to let Scientologists register as a religious group – almost five years to the day after handing down a similar judgment against Moscow.

The European Court of Human Rights has now ruled three times against Russia over its treatment of the movement, which Scientology was naturally quick underline in recent statements.

And given the second ECHR ruling combined two separate complaints, Russia’s conduct has actually been condemned in four separate instances.

Nadezhda Schemeleva, a Russian Scientologist involved in filing the most recent case, made the obvious point, in a statement issued by the movement soon after their legal victory.

We hope this decision of the European Court will allow the authorities to bring the law on freedom of conscience into line with international conventions,” she said.1

For some critics of Scientology, who know what the movement routinely inflicts on its own members, the ruling against Russia has been hard to swallow.

There have even been mutterings in some of the forums that somehow Scientology had “got to” the court, that there had been some kind of stitch-up.

But in each of the three Russian cases, the court was ruling on whether Scientology received fair treatment under the law. Even a cursory reading of the three judgments makes it clear that they did not.

In all three cases, Russian officials blocked efforts by Scientology to register – or rather re-register – as a religion. They were thus stripped of their previously acquired religious status – in violation, it would seem, of the country’s own laws.

Given the way Russia has chosen to deal with Scientology – and a number of religious groups with less sulphurous reputations – the court could hardly have reached any other conclusion.

Nor did the court have to make any ruling on whether Scientology was a religion: the Russian authorities had already conceded as much.

It just wasn’t their kind of religion.

Strike one

In the first case, the Church of Scientology, Moscow, complained about the way it had been stripped of the religious status it had acquired in January 1994, in the wake of the break-up of the Soviet Union.

In October 1997, a new law known as the Religions Act came into force requiring all religious groups, even those previously approved, to re-register.

Scientology’s lawyers filed papers in August 1998, but by June of the following year its application had been refused.

They tried again in December 1999, but were knocked back again the following month. This time it was the deputy head of the justice department who wrote to them, citing various specified – and some unspecified – violations of Russian law.

He simply ignored his legal obligation to clearly state all and any reasons for rejecting the application..

And so it went on, back and forth, for several years.

Between 1998 and 2005, Scientology’s Moscow branch filed 11 applications for religious status. Despite more than one court ruling in their favour, the authorities rejected every bid.

When officials bothered to give a reason, often it was simply that Scientology had failed to produce documentary proof that it had been operating in Moscow for at least 15 years, a requirement under the new law.2

That 15-year requirement was itself unlawful however: Russia’s Constitutional Court had already ruled that the authorities could not make such a demand of any organisation that had existed before the 1997 law came into force.3

Finally, in April 2002, the Church of Scientology in Moscow filed a complaint with the European Court of Human Rights. The case was argued in March 2007.

Russia’s lawyers insisted that Scientology’s rights had not been violated as members were still free to practise their faith, hold services and other ceremonies; the movement could still guide its followers.

The refusal to re-register Scientology “was not harsh and was not motivated by religious factors, but by a failure to submit to the Religions Act and violation of the administrative procedure”, they argued.

For Russia then, the issue was not whether Scientology was a religion or not, but whether they had filed the right paperwork.

The Strasbourg court dismissed Russia’s defence. In its April 2007 ruling, five years on from the original complaint, it noted:

Where the organisation of the religious community is at issue, a refusal to recognise it also constitutes interference with the applicants’ right to freedom of religion under Article 9 of the Convention...

The believers' right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention.

The court also cited previous EHCR judgments condemning the discriminatory measures in the Religions Act, including one that had backed those well known subversives the Salvation Army.4

This case, the court concluded, was no different.

Two for one...

It was a similar story in the second judgment, which rolled two complaints into one.

The first concerned a Dianetics centre in Surgut City, in Russia's eastern Khanty-Mansi Autonomous Region (in the northern reaches of western Siberia).

The Surgut Humanitarian Dianetics Centre opened in 1994, acquiring state registration as a non-governmental social organisation.

In 1995 a new law required NGOs to re-register, but when it tried to comply, it was rejected on the grounds that the aims of the centre were essentially religious.

An attempt to re-register as a non-commercial operation was refused on the same grounds  – and by now the local justice department was trying to shut them down.

So they took the hint.

In 2000 they tried to set up a Scientology group with the express aim of holding religious services and applied for the appropriate recognition.

This time of course they fell foul of the 15-year rule that featured in the 1997 Religions Act – and it was at this point the Scientologists went to court.

Once again, the case went back and forth in the courts for several years (between October 2000 and January 2005), with the Scientologists winning some cases and losing others.

But the end result was they were still required to provide the documents to satisfy the 15-year rule.

Over in the Republic of Tatarstan meanwhile (a seven-and-a-half-hour flight to the west), Scientologists were struggling with a bid to register a church in the town of Nizhnekamsk.

They went to court after a bid filed in December 1999 was rejected – bizarrely, because a religious expert had not yet pronounced on the documents filed.

After more legal ping-pong  – and two rulings in their favour from Tartarstan’s Supreme Court  – the President of the Supreme Court decided that the original ruling had been correct: they needed to wait for the expert report.

Finally delivered in November 2002, it concluded that Scientology was indeed a religion, but with an Orwellian flourish advised against it being established as a church because it had only recently been established.

Once again then, the 15-year rule was being used to block Scientology’s registration – and despite continuing to fight it in Russian courts, that was one obstacle they could not clear.
The Surgut City application to the European Court of Human Rights was filed in August 2001; the Nizhnekamsk case arrived in October 2003.

In June 2005 the court accepted both complaints. It rolled them into one, heard arguments in September 2009 and delivered its judgment the following month.5

It was not the Court's role to decide whether or not Scientology qualified as a religion, said the ruling. The Russian authorities had, after all, conceded the point in both cases.

Yet they had still denied both groups the rights of a fully registered church. And the 15-year rule, already denounced by Russia's own Constitutional Court, had played a central role in this obstruction.

Scientology’s rights to freedom of religion and association had been violated because they had been prevented from registering as groups with full legal rights, the court ruled.6

Case closed: strike two against the Russian authorities.

The biter bit

The third ruling was delivered last month, as I reported in more detail over at Tony Ortega’s Underground Bunker.7

Almost five years to the day after the previous judgment against them, Russia was condemned again.

This time it was a group in St Petersburg that had filed with the court. During six bids to re-register under the terms of the new Religions Act, its members experienced the now-familiar administrative obstruction.

Their papers were passed from one official body to another; rejections were based on procedural technicalities that changed from one decision to the next; and this case too was delayed while an expert report was prepared – a litany of bureaucratic bad faith.

And once again, the 15-year rule was brought into play to trump any further applications.

Russia, in its arguments to the European court, actually acknowledged that the refusal to register the Scientology group interfered with its members' freedom of religion.

But it justified this as “...having been necessary in a democratic society for suppressing manifestations of religious discord”.

The Strasbourg court wasn’t having any of it.

It had already ruled on the unfairness of this 15-year rule in the 2009 judgment ruling.8 The same principle applied here, it said.

In so far as the fifteen-year waiting period under Russia’s Religions Act affected only newly emerging religious groups that did not form part of a hierarchical church structure, there was no justification for such differential treatment.

Case closed: strike three.
A key problem any country faces in its dealings with Scientology is how to stop it abusing its members – and for that matter its critics – without infringing on its basic rights.

It is not an easy balance to strike – though it is no surprise, really, that Russia keeps failing this test.

The cases just examined after all, simply illustrate what happens when one authoritarian organisation comes up against another.

In Russia, Scientology faced an arbitrary system steeped in bad faith, changing the rules whenever expedient: savour the irony.

So when, for once, Scientology gets a taste of its own medicine, it is tempting to sit back and enjoy the spectacle.

Resist the temptation. Focus instead on where Russia went wrong  – and on which countries are addressing the problem most effectively.

At the other end of the spectrum from Russia is the United States.

Here, as I have argued here before, the courts are so protective of religious freedom they have let Scientology trade it into a free pass for the egregious abuse of its members.9

Other countries, however, appear to be better at striking the balance.

Those who think the ECHR rulings against Russia mean that somehow Scientology got the fix in – three times running no less – should remember that the movement does not always get its own way there.

As reported here last week, Scientology had no luck with its much-trumpeted bid to take France to the same court after a Paris court convicted it of organised fraud. Their application fell at the first hurdle, a single judge rejecting it as inadmissible back in June.

And as I reported in September last year, the ECHR also dismissed a complaint the movement tried to bring against Belgium over an ongoing investigation there.

So far at least, these countries have passed the test, investigating Scientology – and in France’s case convicting it – without trampling on the movement's basic rights.

But if Scientology as an organisation is convicted a second time in France, it faces the possibility of being dissolved.

How that will work in practice is not clear yet: but it will be interesting to see what the European court makes of that sanction, if ever it comes to that.

1   “L’Église de Scientologie de Saint Pétersbourg, en Russie, gagne devant laCour Européenne des Droits de l’Homme” from the movement’s public relations website. See also French Scientologist Eric Roux’s blog post on October 3, a day after the ECHR ruling: “L'Eglise de Scientologie gagne à nouveau contre la Russie à la Cour Européenne des Droits de l'Homme”.
2    Sometimes they even demanded the original copies of such documents which, it turned out, was as unlawful as it was unreasonable. In fact the Justice Department already had the original documents in question, which had been enclosed in the initial application and never returned.
3    The first in a series of such rulings by the court was handed down in 1999. Decision no. 16-P of 23 November 1999 in the case of Religious Society of Jehovah’s Witnesses in Yaroslavl and Christian Glorification Church); decision no. 46-O of 13 April 2000 in the case of Independent Russian Region of the Society of Jesus; and decision no. 7-O of 7 February 2002 in the case of Moscow Branch of the Salvation Army.
4   The Moscow Branch of The Salvation Army v. Russia, no. 72881/01, §§ 23-24, ECHR 2006. You can find a court press statement on the case here.
5   While the judgment was handed on October 1, the final version was published on March 1, 2010. Kimlya and Others v. Russia, (Applications nos. 76836/01 and 32782/03).
6   Articles 9 and 11 of the European Convention of Human Rights. The 15-year rule, the Court noted, only affected groups that could not prove their presence in a given region over the required period. “It appears therefore that only those newly emerging religious groups that did not form part of a strictly hierarchical church structure were affected by the ‘fifteen-year rule’. The Government did not offer any justification for such differential treatment.”
9   See for example, this write-up of The Harvard Law Review’s critique of a US appeals court ruling that dismissed lawsuits brought by former Sea Org members Marc and Claire Headley against Scientology.