December 16, 2021 | HRWF
With this judgment, the European Court has just confirmed again that the protection of Article 9 of the European Convention on Human Rights does not only concern historical religions and belief systems with institutional characteristics but also newer religions, which is the case of the Church of Unification. Counter-cult, anti-cult organizations and “cult-watching” state agencies discriminating between so-called cults and religions – a stigmatizing process – should give up their argument that so-called cults are not religious or belief systems. The European Court thinks otherwise. Its judgements are parts on the rule of law and are in line with the U.N. standards:
UN Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Article 18), 27 September 1993, UN Doc. CCPR/C/21/Rev.1/Add.4, para. 2.
“Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 of the ICCPR is not limited in its application to traditional religions or to religions and beliefs “with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”
Report of the U.N. Special Rapporteur on freedom of religion or belief, U.N. Doc A/61/340, 13 September 2006, pp. 49-51
“(…) when religious minorities are groups that follow a so-called non-traditional or newer religion, the members of these communities may be the object of suspicion and, consequently, suffer greater limitations to their right to freedom of religion or belief.”
Multiple violations in enforced expulsions from Russia of two foreign missionaries
Registrar of the European Court (23.11.2021) – In today’s Chamber judgment1 in the case of Corley and Others v. Russia (application nos. 292/06 and 43490/06) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) to the European Convention on Human Rights in respect of the two missionary applicants (Mr Corley and Mr Igarashi);
a violation of Article 2 of Protocol No. 4 (freedom of movement) to the European Convention in respect of Mr Igarashi;
a violation of Article 9 (freedom of thought, conscience and religion) of the Convention in respect of Mr Corley and Mr Igarashi;
a violation of Article 8 (right to respect for private and family life) in respect of Mr Corley and Mr Igarashi and their families;
a violation of Article 3 (prohibition of inhuman or degrading treatment) on account of Mr Igarashi’s degrading conditions of detention; and
a violation of Article 5 §§ 1 and 5 (right to liberty and security) in respect of Mr Igarashi.
The case concerned the sudden and enforced expulsion from Russia of two missionaries of the Unification Church, ostensibly for violating residence regulations.
The Court found in particular that the authorities had deliberately expedited the proceedings, dispensing with the legal formalities and thus denying Mr Corley and Mr Igarashi the possibility of exercising their procedural rights prior to their expulsion.
As nothing indicated that they had been engaged in any activity other than missionary work, the Court found that their forced departure constituted interference with their right to freedom of religion. Having regard to the pattern of involvement of the security services in their expulsions, it concluded that their expulsions had been undertaken to stifle the spreading of the teaching of the Unification Church in Russia.
The applicants are two missionaries of the Unification Church, a religious movement founded by Rev. Sun Myung Moon, and their families. Mr John Corley, his wife Renée and their son Nikolai, born in 1953, 1952 and 1995 respectively, are American nationals and now live in Irvington, NY, USA. Mr Shuji Igarashi, his wife Toshiko and their daughter Hanae, are Japanese nationals, born in 1946, 1947 and 1982 respectively, and now live in Kawasaki, Japan. Since 1990 and 1993 respectively, Mr Corley and Mr Igarashi had lived in Russia with their families and worked as missionaries.
In early 2006, they were both suddenly expelled from Russia ostensibly for having violated residence regulations.
At that time, Mr Igarashi was the highest-ranking official in the Unification Church of Eurasia, and Mr Corley’s supervisor. Both had been supervisors of Patrick Nolan, the applicant in Nolan and K. v. Russia, (no. 2512/04) of 12 February 2009).
In the case of Mr Corley, State officials showed up at his home towards the end of December 2005 and demanded his identity documents purportedly to check his registration with the Passport and Visa Department. His passport was given back to him three days later with a new leave to remain which expired before the end of winter holidays. Due to the closure of the courts during the holidays, no judge to consider his application for suspensive relief could be found. A day after his leave to remain expired, he was presented with an administrative offence report, a judgment finding him guilty as charged, and a fine. He was ordered to leave the country immediately and was escorted to the airport by uniformed officials, where he boarded a flight to Latvia. His application for judicial review filed from abroad was unsuccessful.
In the case of Mr Igarashi, in February 2006 he went to a rural location near Yekaterinburg to participate in a religious seminar. Less than three days later, on a Sunday morning, six officers from the local police and security services arrived at the seminar venue to check his passport and charged him with failure to register his stay with the local police. A local court was opened especially for him on a Sunday; it convicted Mr Igarashi that same morning and issued a fine and an order for his expulsion from Russia. Pending expulsion, he was to be detained. Mr Igarashi was detained in Yekaterinburg detention centre, in allegedly overcrowded and unsanitary conditions. Police officials offered him release in exchange for his waiver of his right to appeal and acceptance to pay for expulsion expenses. Mr Igarashi signed the waiver and was taken directly to the airport. He was accompanied on the flight to Moscow by two officers of the Federal Migration Service and left Russia the same day.
Appeal against the judgment which Mr Igarashi lodged from Japan was successful; an appeal court found that Mr Igarashi had not committed any administrative offence.
Complaints, procedure and composition of the Court
Relying on Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) and Article 9 (freedom of thought, conscience and religion) of the European Convention, Mr Corley and Mr Igarashi complained that the measures against them had not been carried out lawfully, that they had not benefited from the requisite safeguards and that their enforced departure from Russia had been part of a pattern of expulsions of the Unification Church’s missionaries aimed at stifling the spread of Unification Church in Russia. They also alleged under Article 8 (right to respect for private and family life) that their enforced departure from Russia had interfered with their family lives. In addition, Mr Igarashi complained under Article 2 of Protocol No. 4 (freedom of movement) and Article 3 (prohibition of inhuman or degrading treatment) of his heavy-handed arrest, the unseemly haste of his same-day conviction and imprisonment and the use of the degrading conditions of his detention to bargain for his agreement to drop any appeal and to immediately leave Russia. Relying on Article 5 §§ 1 (f) and 5 (right to liberty and security) he alleged that he had been unlawfully detained but had no right under Russian law to compensation for wrongful imprisonment.
The applications were lodged with the European Court of Human Rights on 4 January and 23 October 2006 respectively. Given the similar subject matter, the Court examined the applications jointly in a single judgment. Judgment was given by a Chamber of seven judges, composed as follows:
Georges Ravarani (Luxembourg), President,
Dmitry Dedov (Russia),
María Elósegui (Spain),
Darian Pavli (Albania),
Peeter Roosma (Estonia),
Andreas Zünd (Switzerland),
Frédéric Krenc (Belgium),
and also Milan Blaško, Section Registrar.
Decision of the Court
Article 1 of Protocol no. 7
The Court noted that the domestic authorities had used a stratagem to get hold of Mr Corley’s valid leave to remain. His identity documents had been taken away from him on the pretence of checking them; he had not been given advance warning of the decision to replace his leave to remain and he had been unable to ascertain the reasons for that decision or to submit reasons against it. The Migration Service’s decision replacing his leave to stay with a shorter one did not cite a specific legal basis for that measure. Moreover, Mr Corley’s new leave to remain was issued one day after the Russian courts had closed for the winter holidays. It was set to expire before they would reopen for business after the holidays. By timing the new leave to stay to coincide with a holiday period, the Russian authorities had consciously created a situation in which Mr Corley’s application for review could not be considered before his expulsion. He had therefore been denied a realistic possibility of exercising his rights under Article 1 § 1 of Protocol No. 7.
Mr Igarashi had likewise been induced into believing that the police merely intended to check his documents. He could not have anticipated that he would be charged with a breach of residence regulations before the grace period for registering a new residence had expired. The unusually fast pace of events and the suddenness with which Mr Igarashi had been charged, tried, convicted, served with an expulsion order and placed in detention pending expulsion in the course of just one Sunday morning indicated that the authorities had sought to prevent him from making any effective use of the remedies theoretically available to him.
The waiver of the right to appeal that he had been made to sign was invalid under Russian law and was not once mentioned in the ensuing appeal proceedings. The circumstances in which a court convicted and imprisoned Mr Igarashi for an offence he had not committed, and in which his liberty was leveraged in order to expedite his departure, disclosed the authorities’ determination to make him leave Russia by all means possible with little concern for legal formalities. As with Mr Corley, the authorities had deliberately created a situation in which Mr Igarashi had been denied the possibility of exercising his rights under Article 1 § 1 of Protocol No. 7 prior to his expulsion.
There had therefore been a violation of Article 1 of Protocol No. 7 in respect of both of them.
Article 2 of Protocol no. 4
Article 2 of Protocol No. 4 guarantees the right to liberty of movement and freedom to choose their residence to everyone who is “lawfully within the territory of a State”. The Court noted that the appeal court had quashed Mr Igarashi’s conviction on the grounds that he could not be sanctioned for failing to register a change of his place of stay prior to the expiry of the statutory three-day time- limit. It had thus been acknowledged that that measure had not been legal. There had therefore been a violation of Article 2 of Protocol No. 4 in respect of Mr Igarashi.
Mr Corley and Mr Igarashi had come to Russia in 1990 and 1993, respectively, at the invitation of the Unification Church, a religious association officially registered in Russia. Both of them were compelled to leave Russia in 2006 on allegedly formal grounds which were not ostensibly related to their religious work. Nevertheless, there were indications that their enforced departure was connected with the exercise of their right to freedom of religion and was aimed at preventing the spreading of the teaching of the Unification Church in Russia.
As there was nothing to indicate that either of them held any employment or position outside the Unification Church or engaged in anything other than religious work, the Court concluded that the reasons for their enforced departure were connected with that work. The pattern of involvement of the security services in the enforced departures of members of the Unification Church from Russia suggested that those measures had been taken for the purpose of repressing the exercise of their right to freedom of religion and stifling the spreading of the Church’s teaching in Russia. As the interests of national security could not serve as a justification for any measures interfering with the right to freedom of religion, and as the Government had not put forward any justification for the involvement of security services in what was claimed to be an ordinary breach of residence regulations, the Court found that there had been a violation of Article 9 of the Convention.
Following their enforced departure from Russia, Mr Corley and Mr Igarashi were separated from their wives and children, who had not been able to follow them immediately due to their community ties in Russia. The measures forcing them to leave amounted to interference not just with their right to respect for family life but also that of their family members. As the Court had found that their expulsion had been carried out in breach of domestic law, such an interference had not been justified. There had therefore been a violation of Article 8 of the Convention in respect of all the applicants.
The Court has already found that overnight detention in police cells designed for short stays only and lacking the amenities indispensable for prolonged detention discloses a violation of Article 3 of the Convention. Following a summary trial, Mr Igarashi had been placed in conditions in which no provision had been made for meeting his basic needs. The cell was cold, sleeping arrangements were rudimentary, and basic personal hygiene items were lacking. He had therefore been subjected to “degrading treatment” in breach of Article 3 of the Convention.
The Court considered that Mr Igarashi’s detention had been arbitrary and violated the lawfulness requirement under Article 5 § 1 of the Convention. However, he had had no enforceable right to compensation because of the restrictive wording of the relevant provisions of the Civil Code. There had therefore been a violation of Article 5 §§ 1 and 5 of the Convention in his respect.
Just satisfaction (Article 41)
The Court held that Russia was to pay Mr Igarashi 1,270 euros (EUR) in respect of pecuniary damage, EUR 10,000 to Mr Corley and EUR 15,000 to Mr Igarashi in respect of non-pecuniary damage and EUR 4,000 to the applicants jointly in respect of costs and expenses.
The judgment is available only in English.