Union of Jehovah’s Witnesses of Georgia and Others v. Georgia (dec.) - 72874/01 - Chamber Judgment [2015] ECHR 527 (21 April 2015)

FOURTH SECTION

DECISION

Application no. 72874/01
UNION OF JEHOVAH’S WITNESSES and others
against Georgia

The European Court of Human Rights (Fourth Section), sitting on 21 April 2015 as a Chamber composed of:

          Guido Raimondi, President,
          George Nicolaou,
          Ledi Bianku,
          Nona Tsotsoria,
          Paul Mahoney,
          Faris Vehabović,
          Yonko Grozev, judges,

and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 16 August 2001,

Having regard to the declaration submitted by the respondent Government on 5 September 2014 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The application was brought before the Court by the Union of Jehovah’s Witnesses of Georgia, the Watch Tower Bible and Tract Society of Pennsylvania, and six Georgian nationals, G. Gudadze, B. Kopaliani, G. Kvaratskhelia, B. Skhulukhia, R. Kharitonashvili, and S. Kvergelidze, members of the above organisations. The applicants were represented before the Court by two Canadian lawyers, Mr A. Carbonneau and Mr J. M. Bruns, and by Mr M. Chabashvili, a lawyer practicing in Tbilisi.

2. The Georgian Government (“the Government”) were successively represented by their Agents, Ms I. Bartaia, Ms E. Gureshidze, and Mr L. Meskhoradze of the Ministry of Justice.

3. The application had been communicated to the Government under Articles 9, 11 and 14 of the Convention.

A. The circumstances of the case

4. On 17 April 1998, the Isani-Samgori Court of First Instance in Tbilisi entered the Union of Jehovah’s Witnesses of Georgia (hereafter “the Union”) in the register of associations. The Union’s stated aims included importing, stocking, diffusing and distributing bibles and religious publications; organising religious gatherings, seminars and meetings; acquiring, constructing and renting equipment and buildings for those purposes; and establishing contacts with international organisations and other Jehovah’s Witness groups.

5. On 11 June 1998 the same first-instance court also registered the Georgian branch of the Watch Tower Bible and Tract Society of Pennsylvania (hereafter “the Watch Tower Society branch”) as an association. The Watch Tower Bible and Tract Society is a non-profit-making organisation which was registered in Pennsylvania (the United States) on 15 December 1884. It promotes the beliefs of the Jehovah’s Witnesses and has branches in 110 different countries. The Georgian branch was set up to assist individuals in their personal development through non-commercial cultural and educational activities and to promote the shared values that make up human and cultural world heritage.

6. The applicants produced two lists, one of which had been issued by the Department of Statistics, which showed that fifteen religious groups and about ten branches of overseas organisations with religious aims were registered as associations in Georgia. Thus, although those groups and branches were religious organisations, they were classified as legal entities under private law.

7. On 26 June 2000 the Tbilisi District Court annulled the registration of the Union and the Watch Tower Society branch. After having examined the charters of both organisations, the District Court considered that, given the objectives of the Union, its activities were of a public nature. Consequently, it could not be classified as a private-law entity under Articles 31 and 35 of the Civil Code. In the opinion of the District Court, the Union was a public-law entity, as defined by Article 1509 (e) of the Civil Code and section 2 of the Public-Law Entities Act.

8. As for the Watch Tower Society branch, the District Court held that the branch status of that group was not in conformity with the Civil Code, under which legal entities engaging in non-commercial activities could only be registered in the form of an association or a foundation. In the court’s view, in accordance with the Council of Ministers’ Order of 17 May 1993, the Watch Tower Society branch should have been registered by the Ministry of Justice, and not by a court. In addition, given the religious nature of its activities, the Watch Tower Society branch was also to be considered a public-law entity.

9. The District Court concluded that, in contrast to private-law entities, the existence of public-law entities, such as the Union and the Watch Tower Society branch, did not arise from an act of registration but had to be based on a specific law pertaining to the activities they carried out. There was, however, no such law governing the activities of the various religious groups in Georgia, and for those reasons the registration of the Union and the Watch Tower Society branch had to be annulled.

10. On 22 February 2001, the Supreme Court upheld the above judgment on appeal. It held that the annulment of the registrations did not infringe the constitutional or Convention rights of the groups, given that it did not restrict, either directly or indirectly, the freedom of religion of their members, their freedom to receive and impart information, or their freedom of assembly. The Supreme Court observed that the issue at hand was the annulment of the registration and not the elimination of the applicant bodies.

11. In execution of the judgment of 22 February 2001, on 10 January 2002 the Isani-Samgori district tax authority removed the Watch Tower Society branch and the Union from the State register of taxpayers and also withdrew their identification numbers as private-law entities.

12. On 28 December 2002 Article 28 of the Civil Code of Georgia was amended. Subsequently, on 28 November 2003, the Watch Tower Society branch was re-registered by the Ministry of Justice.

13. On 6 April 2005 Article 1509 of the Civil Code of Georgia was also amended to allow religious associations to be registered as private-law entities. Lastly, on 5 July 2011 Article 1509¹ was introduced into the Civil Code of Georgia entitling religious groups to register as legal entities of public law. According to the case file, to date the Union has not availed itself of either of the possibilities of registration.

COMPLAINTS

14. The applicants complained that the Union and the Watch Tower Society branch had been deprived of their status as registered associations, infringing their rights guaranteed by Articles 9, 10 and 11 of the Convention read separately and in conjunction with Article 14.

THE LAW

A. Admissibility of the complaints introduced by the six individual applicants

15. In connection with the six individual applicants, the Court reiterates that it may receive applications from persons who claim themselves to be victims of a violation of the rights set forth in the Convention. In the present case, the individual applicants complained that the annulment of the registration of the two applicant organisations by the domestic authorities had resulted in an interference with the applicant organisations’ rights to freedom of religion, expression and association. The Court has already found in similar cases that as long as the applicant organisations had retained the legal capacity to lodge an application with this Court, individual applicants could not themselves claim to be victims of a violation resulting from the domestic authorities’ actions, which concerned the applicant organisations as such (see Church of Scientology Moscow and Others v. Russia (dec.), no. 18147/02, 28 October 2004; Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 168, 10 June 2010; see also The Holy Monasteries v. Greece, nos. 13092/87 and 13984/88, Commission decision of 5 June 1990).

16. It follows that, in so far as this application was introduced by G. Gudadze, B. Kopaliani, G. Kvaratskhelia, B. Skhulukhia, R. Kharitonashvili, and S. Kvergelidze, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

B. The Government’s unilateral declaration

17. By a letter of 19 June 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application and requested the Court to strike out the application in accordance with Article 37 of the Convention. In a letter of 17 July 2014 the applicants objected to the declaration, noting, inter alia, that the scope of the Government’s admissions was narrower than the Convention breaches alleged by the applicants, and that the sum proposed by the Government was inadequate. The applicants also objected to the fact that the Government’s unilateral declaration had been submitted outside the friendly settlement procedure.

18. On 5 September 2014 the Government submitted a revised unilateral declaration, which read as follows:

“The Government - by the way of a revised Unilateral Declaration - wish to express regretful acknowledgement of the violation of Article 9 and Article 11 of the European Convention on Human Rights with respect to the Union of Jehovah’s Witnesses of Georgia (hereinafter “the first applicant”) and to the Representation of the Watch Tower Bible of Pennsylvania in Georgia (hereinafter “the second applicant”). They do so on account of the fact that the interference with the first and the second applicants’ right to freedom of religion and association via the annulment of their registration on 26 June 2000 by the domestic authorities of Georgia was not justified and the lack of respective provisions regulating creation, organization and activity of religious organizations deprived them possibility to be registered as legal entities of private law.

Taking account of the fact that following the amendment of 28 December 2002 made in Article 28 of Civil Code of Georgia, the second applicant was registered by the Ministry of Justice of Georgia on 28 November 2003 as a branch of foreign legal entity;

Bearing in mind the fact that subsequent to the amendment in Article 1509 of the Civil Code of Georgia, on 6 April 2005 the first applicant was entitled to be registered as a legal entity of private law;

Considering that Article 1509¹ of the Civil Code of Georgia, having been in force since 5 July 2011, entitles religious associations to be registered, as a matter of their choice, either as a legal entity of public law or as a non-commercial legal entity, or unregistered unions; that the first applicant has not used to date the possibility to be registered but is able to do so at any time in future;

The Government conclude that the matter has been resolved on the domestic level long ago in line with Article 37 § 1 (b) of the Convention;

However, the Government declare that for the violations having previously taken place in this case, it is prepared to pay each of the applicants 1500 (one thousand and five hundred) Euros to cover any pecuniary and non-pecuniary damages as well as costs and expenses.

These sums will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government, therefore, invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case from the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

19. By a letter of 3 October 2014 the applicants once again expressed the view that the award offered by the Government was wholly inadequate to provide just satisfaction for their complaints. They particularly stressed that the amount proposed could not even cover the legal costs incurred in relation to the present proceedings. They further reiterated the arguments raised in their submissions of 17 July 2014 and asked the Court to reject the Government’s unilateral declaration.

20. Article 37 of the Convention provides that the Court may, at any stage of the proceedings, decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list if “for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

21. The Court also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicants wish the examination of the case to be continued.

22. To this end, the Court examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).

23. At the outset, the Court notes the applicants’ objection that the unilateral declaration in the present case was submitted outside the friendly settlement procedure (see paragraph 17 above). The Court considers that this question is closely related to the merits of the declaration. It is therefore more appropriate to consider them together.

24. As to the merits of the declaration, in the present case the Court communicated three questions: whether the annulment of the registration of the Union and the Watch Tower Society branch had interfered with the applicants’ rights under Article 9 of the Convention; whether their freedom of association had been violated within the meaning of Article 11 of the Convention; and whether the applicants had been victims of discrimination under Article 14 of the Convention because of their faith.

25. According to the Court’s well-established case-law, complaints concerning registration of religious organisations merit consideration under Articles 9 and 11 of the Convention (see Moscow Branch of the Salvation Army v. Russia, no. 72881/01, §§ 74-75, ECHR 2006-XI; Church of Scientology Moscow v. Russia, no. 18147/02, § 64, 5 April 2007; Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 161, 10 June 2010; Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 81, ECHR 2009; Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12, § 45, ECHR 2014 (extracts); and Church of Scientology of St Petersburg and Others v. Russia, no. 47191/06, § 32, 2 October 2014). In the above cases the Court concluded that either by denying registration to various religious groups, or by annulling their registration, the relevant authorities had interfered with the applicant organisations’ right to freedom of religion and association, in violation of Article 11 of the Convention read in light of Article 9. In view of that finding, the Court did not consider it necessary to make a separate examination of the same facts from the standpoint of Article 14 of the Convention (see Moscow Branch of the Salvation Army, §§ 99-101; Church of Scientology Moscow, §§ 99-101; Jehovah’s Witnesses of Moscow and Others, §§ 187-88; Kimlya and Others, § 104; and Magyar Keresztény Mennonita Egyház and Others, §§ 116-18, all cited above; see also Biserica Adevărat Ortodoxă din Moldova and Others v. Moldova, no. 952/03, §§ 55-56, 27 February 2007). It further found in the same context Article 10 complaints to be redundant (see Church of Scientology Moscow, § 64, and Kimlya and Others, § 104, both cited above).

26. The Court notes that in the present case the Government have explicitly accepted in their unilateral declaration that the annulment of the applicant organisations’ registration was in breach of Articles 9 and 11 of the Convention. The Court stresses in this connection that specific legislation has been put in place to fill in the legislative gap concerning the legal status of various religious groups in Georgia (see paragraph 18 above).

27. The Court further notes that the applicants made a number of complaints under Articles 10 and 14 of the Convention which were not addressed by the Government in their unilateral declaration. However, having regard to the Court’s relevant case-law (see paragraph 25 above), it considers that those complaints do not merit a separate examination.

28. Therefore, in view of the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, which is commensurate with the award made in similar cases in respect of non-pecuniary damage (see Church of Scientology of St Petersburg and Others, § 52; Kimlya and Others, § 108; and Biserica Adevărat Ortodoxă din Moldova and Others, § 61, all cited above), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

29. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

30. As to the applicants’ objection (see paragraph 23 above) having regard to all the above mentioned, the Court concludes that there were exceptional circumstances justifying the Court, according to Rule 62A¹§ 2 of the Rules of Court, to consider current unilateral declaration in the absence of prior friendly settlement negotiations.

31. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 18 above).

32. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

C. Costs and Expenses

33. The Court has the discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). The general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see, among others, Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002, and Ertürk v. Turkey (dec.) no.49683/99, 4 May 2006). In other words, an award can be made to an applicant in respect of costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Donadzé v. Georgia, no. 74644/01, § 48, 7 March 2006).

34. In the present case, having regard to the amount of work carried out by the applicants’ lawyers, to the information concerning the actual costs in its possession (see also paragraph 19 above) and to the criteria set out above, the Court considers it reasonable to award the sum of 3,000 euros in respect of legal costs and expenses, plus any tax that may be chargeable. This amount is to be converted into the national currency at the rate applicable on the date of payment.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Articles 9 and 11 of the Convention with respect to the Union and the Watch Tower Society branch and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike a part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the above-mentioned complaints;

Holds

(a) that the respondent State is to pay the Union and the Watch Tower Society branch, within three months, EUR 3,000 (three thousand euros) plus any tax that may be chargeable in respect of costs and expenses, to be converted into the national currency at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 21 May 2015.

Françoise Elens-Passos Guido Raimondi
Registrar President

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