Ossewaarde v. Russia

Legal summary
March 2023

Ossewaarde v. Russia – 27227/17

Judgment 7.3.2023 [Section III]

Article 9
Article 9-1
Freedom of religion

Unjustified administrative sanction of Baptist Christian for holding Bible meetings in his home without notifying the authorities as required by new legislation applicable to missionary activities: violation

Article 14
Discrimination

Unjustified higher minimum fines applicable to non-nationals compared to nationals for the same offence of illegal missionary work: violation

Facts – The applicant, a Baptist Christian, conducted regular gatherings of people at his home for prayer and Bible reading, personally inviting attendees or putting invitations in people’s mailboxes. After one such occasion he was charged with the administrative offence of conducting illegal missionary work as a non-Russian national, in particular, placing invitations to religious service on notice boards which was interpreted as “disseminating information about his religion among non-members of his religious association” and conducting missionary work without notification of establishment of a religious group. He was convicted of these offences by the domestic court with his subsequent appeals being dismissed.

Law –

Preliminary issue – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.

Article 9:

The applicant’s conviction for failing to comply with the new legal requirements applicable to missionary activities had amounted to an interference with his right to freedom of religion which had been based on the updated provisions of the Religious Act and the Code of Administrative Offences.

There had been no evidence that the applicant, who had been engaged in evangelism for more than ten years, had used any improper methods of proselytism or had caused anyone to participate in religious meetings against their will. Furthermore, there had been no indication whatsoever that the applicant’s religious speech contained any expressions seeking to spread, incite or justify hatred, discrimination or intolerance. Therefore, he had been sanctioned solely for failing to comply with new legal requirements applicable to missionary work which had been introduced in 2016 as part of an anti-terrorism package.

The new legislation had made it an offence to conduct missionary work in residential premises that were not owned or rented by a religious association and had also subjected missionary work to the requirement of prior authorisation from a religious association. These regulations had left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation had also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and had burdened religious expression with restrictions greater than those applicable to other types of expression.

The Government had not explained the rationale behind subjecting missionary work to the new formalities. It was, however, apparent that so long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which could have been legitimate aims for the regulation of missionary activities. Therefore, the need for such new onerous restrictions constraining missionary activities and in respect of which the applicant had been sanctioned for non-compliance, had not been convincingly established. Accordingly, the interference with his right to freedom of religion on account of his missionary activities had not been shown to pursue any “pressing social need”.

Furthermore, sanctioning the applicant for the alleged faiure to notify the authorities of the establishment of a religious group, had not been “necessary in a democratic society”. Firstly, the legislation on mandatory registration of religious groups had not been adopted owing to the inherent difficulties of its application. Secondly, the exercise of the right to freedom of religion or of one of its aspects, including freedom to manifest one’s beliefs and to talk to others about them, could not be made conditional on any acts of State approval or administrative registration because of the risk that a State would dictate what a person must believe.

Conclusion: violation (unanimously).

Article 14 taken together with Article 9:

Pursuant to the Code of Administrative Offences, an individual found guilty of an offence of illegal missionary work would be sanctioned differently depending on whether the offender was a Russian national or non-national. In the latter case, the minimum fine was six times higher than for a Russian national and the additional penalty of expulsion applied. This provision had therefore introduced a difference in treatment of persons in an analogous situation on the grounds of their nationality. The Government had failed to indicate what legitimate aim the difference in treatment had pursued and how it was capable of being objectively and reasonably justified. While the application of the additional penalty of expulsion exclusively to non-nationals might be objectively justified by the fact that it could not be applied to nationals, there had been no justification for the considerably higher minimum fines applicable to non-nationals in respect of the same offence. That difference in treatment also appeared hard to reconcile with the provisions of the Religions Act which posited that non-nationals lawfully present in Russia might exercise the right to freedom of religion on the same conditions as Russian nationals.

Conclusion: violation (unanimously).

Art 41: EUR 592 awarded in respect of pecuniary damage; EUR 10,000 awarded in respect of non-pecuniary damage.

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