European Court of Human Rights - Case on missionary Work in Russia

Introduction:

The European Court of Human Rights recently handed down a decision in the case of Ossewaarde v Russia that involved missionary work in the Russian Federation. The case, amongst other rights, involved the right to religious freedom (which is protected under article 9 of the European Convention on Human Rights*). This article will only focus on those aspects of the case that had to do with article 9.

*Note: At the time the incidents that led to the case took place, Russia was a party to the Convention and the Court could hear cases involving alleged violations of the Convention.  Russia ceased to be a party to the Convention after 16 September 2022.

The Facts:

The case involved an American citizen, Mr Ossewaarde, who is a 63-year-old Baptist Christian and who had been living in Russia as a permanent resident since 2005. Mr Ossewaarde regularly invited people to meet at his and his wife’s home for prayer and Bible reading. (He invited them personally, or put invitations in their post boxes, or on apartment blocks’ notice boards.) Mr Ossewaarde did not notify the Russian authorities that he was holding such gatherings. The Russian authorities, after receiving a complaint from someone who saw Mr Ossewaarde’s invitation on her apartment block’s notice board, charged Mr Ossewaarde with (a) placing an invitation to a religious service on notice boards which the Russian authorities interpreted as “disseminating information about his religion among non-members of his religious association”, and with (b) conducting missionary work without notification of the establishment of a religious group. I.e. Mr Ossewaarde was engaged in religious activity without the necessary registration and/or approval by the Russian government. Both of these are administrative offences pertaining to the conducting of illegal missionary work by non-Russian nationals.

The issue:

Mr Ossewaarde’s case wound its way through the Russian courts: It started in the district court which found him guilty of posting information about religious meetings that he organised in his home without notifying the authorities of the establishment of a religious group – and fined him ₽ 40 000,00 (Russian Roubles) for it. Mr Ossewaarde then appealed to the Regional Court (which also found him guilty). Finally, Russia’s Constitutional Court refused to hear his case, saying it was not competent to decide whether or not Mr Ossewaarde was a member of a religious association.

Only after having exhausted the domestic possibilities, did the case go to the European Court of Human Rights.

The law:

Russia has two (2) domestic laws that are applicable to Mr Ossewaarde’s case:

One, the Religions Act (Law no. 125-FZ of 26 September 1997). The Act guarantees the right to freedom of conscience and freedom of religion and states that foreign nationals, such as Mr Ossewaarde, who are lawfully present in Russia, enjoy the right to freedom of conscience and religion on par with Russian nationals. Section 3(1) of the Act states that this includes the right to worship any religion, individually or in community with others, to perform services or worship, other religious rites and ceremonies, to teach religion and provide religious education, freely to choose, change, have and spread religious and other beliefs and act in accordance with them, including by means of establishing religious associations.

Two, the Countering Terrorism and Enhancing Public Security Act (Federal Law no. 374-FZ of 6 July 2016). The Act creates new administrative offences (i.e. fines and/or deportation, but no jail time) in matters involving religious freedom. One of these offences is illegal missionary work as part of an anti-terrorism package. Illegal missionary work includes evangelising without the applicable State registration. The Act also imposes special conditions on foreign nationals, such as Mr Ossewaarde, who conduct missionary work.

Concerning the international law aspect, Russia was still a party to the European Convention on Human Rights when the facts in this case occurred and hence the Convention is applicable to this case. Article 9 of the Convention protects the right to freedom of thought, conscience and religion and expressly states that this right includes the freedom to (either individually or in community with others and whether in public or private), manifest your religion or belief, in worship, teaching, practice and observance.

Evangelism is a component of religious freedom:

The Court reiterated that the freedom to manifest one’s religion includes the right to express one’s religious views by telling others about them and trying to convince them of such views. Missionary work, or evangelism, is thus seen as a part of religious freedom.

Russia’s interferences with religious freedom:

The Court said that Mr Ossewaarde’s conviction by Russia amounted to an interference with his right to freedom of religion protected by article 9 of the Convention. Thus, the question became whether this interference pursued a legitimate aim and was necessary in a democratic society. One legitimate aim, would, for example, would be where the religious persuasion involves an element of coercion or violence. However, where there is no evidence of either coercion or improper pressure, people have the right to engage in individual evangelism and door-to-door preaching. While Russia was entitled under the Convention to require religious denominations to register as such, it has to do so in a way that was compatible with the Convention (that it was then a party to). Russia’s sanctioning of individual members of an unregistered religious entity was incompatible with the Convention because this would amount to the exclusion of minority religious beliefs which are not formally registered with the Russian government. This would result in accepting that Russia could dictate what a person must believe.

There was no evidence that Mr Ossewaarde used any improper methods of evangelism or caused anyone to participate in the meetings against their will. People who were not interested were free not to respond to Mr Ossewaarde’s invitation and to ignore advertisements posted in public places. Russia had, therefore, sanctioned Mr Ossewaarde, not for seeking to persuade others of his religious beliefs through any improper manner, but solely for failing to comply with Russia’s prior authorisation requirements relating to missionary work. The Court emphasised that the exercise of the right to religious freedom, including the freedom to manifest one’s beliefs and to talk to others about them, cannot be made conditional on any acts of State approval or administrative registration because of the risk that a State could effectively dictate what a person must believe (for example, by refusing to register certain religious entities).

The Court held that Russia had infringed upon Mr Ossewaarde’s right to religious freedom and ordered Russia to pay damages to Mr Ossewaarde amounting to €14 592,00 (even though Mr Ossewaarde had only claimed €5 960,00).

Conclusion:

Although foreign cases do not have any binding effect on South African courts, they are nevertheless interesting and important, both from a comparative law point of view and for picking up international trends in the area of religious freedom law which does – at times – spill over into our local context. Of specific interest in this case is the use of anti-terrorism laws by the Russian Federation to require that religious organisations register with it, and therefore, obtain its prior authorisation before being allowed to engage in manifestations of the right to religious freedom.

This is significant due to the fact that 2022 saw the introduction and/or amendment of various South African anti-terrorism laws – and which could have a significant impact on religious freedom. These included, amongst others, the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act (“Anti-Money Laundering Act”) and the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Act (“Terrorism and Related Activities Act”).

When the Anti-Money Laundering Act was first introduced in Parliament and opened for public comment, it sought to impose mandatory registration on religious organisations. Specifically, to register as nonprofit organisations (“NPOs”) with the Department of Social Development (“DSD”), under penalty of imprisonment and/or fine. FOR SA’s submission put forward legislative proposals to prevent blanket mandatory registration, the imposition of criminal sanctions for non-compliance with the NPO Act, and the state regulation of religion. This led to significant changes in the Act before it was passed. (For more information on the practical implications of the Act on religious organisations, read this article.)

Similarly, the initial version of the Terrorism and Related Activities Act proposed the criminalisation of possessing and/or distributing whatever is deemed to be “terrorism-related content” – a new crime for which the Bill proposed a jail sentence of up to five (5) years. Given the role that the religious community plays in keeping the State accountable, FOR SA’s submission focussed on the potentially muzzling effect or even sanctioning of religious organisations and communities who may criticise Government actions and/or its decisions. (For more information read this article.)

Both Acts, especially in light of Mr Ossewaarde’s case, illustrate how we cannot take religious freedom for granted and that we must guard it with eternal vigilance.

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