APPEAL FOR CASSATION of the decision of the Appeal Chamber for Civil, Entrepreneurial, and Bankruptcy Cases of the Tbilisi Circuit Court On 26 June 2000 the Appeal Chamber for Civil, Entrepreneurial, and Bankruptcy Cases of the Tbilisi Circuit Court, chaired by M. Tchkonia, granted the appeal of Guram Sharadze, Chairman of the Political Union of Georgian Citizens — The National Movement "Georgia Above All!". The plaintiff had asked the appeal court to annul the 29 February 2000 decision of the Isani-Samgori District Court, which refused to revoke registration of the Union of Jehovah's Witnesses and the representation of the Watch Tower Bible and Tract Society of Pennsylvania (USA) in Georgia, and to render a new decision in the case granting his original claims. These two associations were registered with the Isani-Samgori District Court on 17 April and 11 June 1998 by Badri Kopaliani and other Jehovah's Witnesses in Georgia in order to permit their communities of believers to rent facilities for meetings and collective worship, acquisition of real estate for individual and community worship, import Bibles and liturgical literature for Jehovah's Witnesses, and to provide humanitarian aid. The defendants believe that the Tbilisi Circuit court's decision is illegal, must be annulled in its entirety, and replaced by a new decision on the following grounds: A. REASONS FOR CASSATION 1. The appeal court revoked registration of the defendant organizations on illegal grounds. The Tbilisi Circuit Court revoked the defendant organizations' registration on the sole grounds that they pursue religious goals. The court reasoned that, at the present time, Georgian law does not directly provide for the religious activity of voluntary associations, i.e. that which is not expressly permitted is prohibited'. This is an interpretation of law which the defendants strongly contest (see Section 2). Nevertheless, it cannot serve as legal grounds for granting the plaintiff's demands. Article 26(6) of the Georgian Constitution states that the activity of voluntary associations may be suspended or prohibited only on the grounds and in the procedure established by organic law. The Georgian Organic Law "On the Suspension and Prohibition of the Activities of Voluntary Associations" (see attachment 1), which under Article 1 applies to the defendant organizations, exhaustively lists these grounds as follows in Articles 3 and 4:
The appeal court did not even suggest that the defendant organizations pursued the prohibited goals or activities listed above, nor did it dispute the lower court's finding that the plaintiff's allegations of illegal activity were unsubstantiated. However, despite the formal grounds cited, the court did not restrict itself to matters of reorganization or corrections to documentation. It unambiguously denied the defendant organizations' right to any legal status as associations in Georgia for the indefinite future, and it based its decision entirely on the grounds that they pursue religious goals. It concluded that such would become possible only when the State passes "a special law that regulates religious life" (case volume 3, pp. 150). Consequently, the appeal court's extreme decision to unilaterally revoke the defendants' registration due to religious activity was neither prescribed by law nor proportionate to the formal aims pursued. It failed to apply a relevant law, namely the Georgian Organic Law "On the Suspension and Prohibition of the Activities of Voluntary Associations". In doing so, it violated Articles 26(6), 19 taken together with 45 of the Georgian Constitution, and Articles 9(2), 10(2), 11(2), and 14 of the European Convention on Human Rights (see attachment 2). 2. The appeal court's decision was an illegal interference in the defendants' constitutional rights. The defendants have maintained from the outset of these proceedings that the plaintiff's lawsuit is a crude and irresponsible attack on the religious minority of Jehovah's Witnesses, as well as their right to express their beliefs and practice their faith in community with others. It has created a climate of hostility, violence, and discrimination against men, women and children of this religious faith (see attachment 3). Under such circumstances, the defendants take serious issue with the court's opinion that its decision causes no detriment to persons who are Jehovah's Witnesses or to their constitutional rights. The revocation of legal registration has deprived the defendants of any possibility of jointly and individually pursuing the aims in both associations' charters and exercising the rights in question. In particular, the Union of Jehovah's Witnesses is a non-commercial voluntary association of Georgian citizens who practice the religion of Jehovah's Witnesses. It was created on the basis of their free will so as to collectively pursue mutual interests, including rental and acquisition of places of worship and assemblies (case volume 3, pp. 91, 92). The appeal court's decision, which has not even come into legal force yet, has already directly interfered with Jehovah's Witnesses' freedom to assembly. On 6 July 2000, the Premier of Tbilisi denied permission for a religious convention because of the court's decision (see attachment 4). Further, the Watch Tower Bible and Tract Society of Pennsylvania, besides being officially recognized by the Coordination Department for International Humanitarian Aid (case volume 2, pp. 141, 142) and having provided nearly 100 tons of food and clothing as humanitarian assistance to Georgia citizens during the past year alone, is also the only current importer of Bibles, hymn books, and other liturgical literature for Jehovah's Witnesses in Georgia, which it provides to them completely free of charge. The appeal court's decision, which has not even come into legal force yet, has already directly interfered with Jehovah's Witnesses' freedom to receive information without interference by public authority. At the time this appeal was filed, the State Customs Department of Georgia was refusing to release any liturgical literature imported for Jehovah's Witnesses since the court's decision. This includes shipments received and detained on 11 July 2000 by Tbilisi Airport Customs and 15 July 2000 by the Poti Port Customs. Therefore, the defendants cannot agree with the court's statement that their claim to freedom of association was based on "a misunderstanding of the law" and that revoking registration "can have no effect" on their freedom of religion (case volume 3, pp. 151). Quite the opposite, there is a directly applicable constitutional right to create voluntary associations for religious goals, and the appeal court's decision was a direct interference in these freedoms. This flows from Article 26(1) of the Georgian Constitution taken together with Articles 19, 38(1), and 45:
The relevant norms of international law ratified by Georgia are contained in the European Convention of Human Rights. The European Court of Human Rights, in its 10 July 1998 decision in Sidiropoulos & Others v. Greece (see attachment 5), stated categorically: Exceptions to freedom of association must be narrowly interpreted, such that the enumeration of them is strictly exhaustive and the definition of them necessarily restrictive . The Court points out that the right to form an association is an inherent part of the right set forth in Article 11 [of the European Convention] . That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which the right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Freedom of association is integral to freedom of religion and freedom of expression. Articles 9(1), 10(1), and 11(1) taken together with Article 14 of the European Convention, as well as Article 16(3, 9) of the Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the CSCE [OSCE] (see attachment 6), which includes Georgia, shows:
Consequently, the court's claim that the constitutional guarantee of freedom of association was misapplied in this case is false. Taken together with other constitutional norms and international law, this includes the right to form a legal entity to act collectively in the pursuit of religious goals. Similarly, the court's claim that "freedom of religion and beliefs originate from the free choice of each individual, on which the existence of registration or its revocation can have no effect" (case volume 3, pp. 151) subverts the concept of religious freedom. Freedom of religion includes the right to manifest one's religion both alone and "in community with others." Under the Georgian Constitution, religious freedom also extends to legal entities in which individual Georgians come together to manifest religious beliefs "in community with others." The national legislation of Georgia enshrines the above freedoms in a democratic fashion through the Georgian Civil Code [GCC] of 25 November 1997 (see Section 3). Jehovah's Witnesses in Georgia have properly exercised this freedom by registration of a union and representation under GCC 31 and 28. The practical application of this law by the Georgian courts is also consistent with a democracy. The defendants have provided the court with documentation of no less than 16 such unions and representations registered in Tbilisi courts since the GCC came into force, which were created for religious goals by groups of citizens of various denominations, including Orthodoxy (case volume 2, pp. 144-148). Therefore, the appeal court's decision to revoke registration was an illegal interference in the defendants' constitutional rights to freedom of association, expression, and religion. It is also illegal discrimination on the basis of religion, a violation of Article 14 of the European Convention taken together with Articles 9, 10, and 11. This decision, if upheld, would implicate the dissolution of numerous other legally registered associations of religious orientation. 3. The court misinterpreted Georgian law to mean that the defendant organizations' current legal status does not permit religious activity. The Tbilisi Circuit Court, while recognizing the constitutional right of private individuals to freedom of religion, drew the unsubstantiated conclusion that religious activity "cannot be the goal of a legal entity of private law" (case volume 3, pp. 150) It was on this basis that the court ruled the defendant organizations' registration must be revoked. The reason for this was the court's misinterpretation and misapplication of the GCC, the Georgian Law "On Legal Entities of Public Law", and the Georgian Constitution. The defendants note that the following legal arguments, which were raised of the court's own initiative in its decision, were never discussed at the hearing, nor were they mentioned by the plaintiff in his appeal or at any other time in the proceedings. This violated the principle of the adversarial process enshrined in Article 85(3) of the Georgian Constitution and Article 4 of the Georgian Civil Procedural Code [GCPC]. Therefore, it has become necessary for the defendants to respond to these specific points of law for the first time before this court. a) First, the court misapplied GCC 1509(1e), which served as the foundation of its argument:
The court erroneously interpreted GCC 1509(1e) to mean that associations may pursue religious goals only under a special law, and since no such law currently exists in Georgia, the defendants' registration must be revoked. As shown in Section 2 above, this interpretation is contrary to the Constitution and therefore in violation of GCC 2(1), 4(1):
Therefore, in applying GCC 1509(1e), the appeal court was obliged by law to interpret it in a manner consistent with the defendants' constitutional rights. Since the constitutional rights and norms of international law discussed in section 2 above do not require specification, and, as flows from Articles 6, 7, and 39 of the Georgian Constitution, are directly applicable and take precedence over domestic law, they must be ensured regardless of whether a special law on religion exists or not:
The court's interpretation of GCC 1509(1e) to prohibit the defendant organizations from pursuing religious activity is also wholly inconsistent with the rest of the GCC and the very concepts of public and private law. This article in the GCC's transitional provisions, while providing the State with the basis to create the special legal status of a religious association under public law, was never intended to prohibit unions of citizens from pursuing religious goals. This follows from GCC 10(1, 2) and 25(2):
For example, NGO's created on the basis of legislation for achieving social, educational, or cultural goals are also considered to be legal entities of public law. Yet this in no way deprives citizens of the right to create legal entities under private law that pursue social, educational, or cultural goals. Therefore, the claim that religious activity "cannot be the goal of a legal entity of private law" is not based on the law. The chartered goals of the defendant organizations are completely consistent with their present registered status as a union and representation under private law. As noted in Section 2, this has been supported by court practice. There is no basis for the claim that their registration is illegal and must be revoked. b) Second, the court misapplied GCC 24(3) and 25(1):
2. Legal entities of private law (entrepreneurial or non-entrepreneurial) have the right to engage in any activity that is not prohibited by law, regardless of whether such is stipulated by its charter. As seen in context, these articles simply define a legal entity of public law as a special type of legal entity created under a particular law. However, as opposed to legal entities of private law, they are restricted to the activities stipulated in that law and their charter. These articles in no way restrict the activity of legal entities of private law, nor do they require the defendant organizations to register as legal entities of public law. c) Third, the court misapplied the law "On Legal Entities of Public Law": Since the defendant organizations are by definition legal entities under private law, the law "On Legal Entities of Public Law" of 28 May 1999 (see attachment 7) does not apply to them. Further, this law cannot be applied for the following reasons:
Consequently, the Georgian Law "On Legal Entities of Public Law" cannot be applied to the defendant organizations, much less serve as grounds for revoking their registration. d) Fourth, the court misapplied GCC 30 and Order No. 372 of the Cabinet of Ministers of the Republic of Georgia of 17 May 1993 [1993 Order]: In revoking registration of the representation of the Watch Tower Bible and Tract Society of Pennsylvania, the court claimed that "in accordance with GCC 30, a legal entity whose goal is not entrepreneurial activity, may exist in the form of a union or foundation, thus, civil legislation does not recognize a representation as a subject of private law" (case volume 3, pp. 150). The claim that "civil legislation does not recognize a representation as a subject of private law" is absurd, as GCC 8 shows all individuals and legal entities regardless of their legal status or country of origin can be subjects of private law. However, assuming the court intended to say that the representation does not have the status of a legal entity of private law, this is hardly surprising, since according to GCC 28 a representation (branch) is not an independent legal entity at all:
Accordingly, the representation is merely a part of the legal entity that operates it and reflects that entity's legal status. Since the 1993 Order cited by the court does not apply to all legal entities, but only to foreign voluntary associations and media organizations, the relevant legal status of the Watch Tower Bible and Tract Society of Pennsylvania from the standpoint of Georgian law is the determining factor in whether it properly registered its representation in Georgia under the 1993 Order. This is where the appeal court made its error. It claimed that the Society "is a religious association and a subject of public law" and therefore its "registration as a subject of private law is unlawful and must be revoked" (case volume 3, pp. 151). These circumstances, regardless of whether they are accurate or not, are wholly irrelevant. The 1993 Order makes no distinction whatsoever between legal entities of public and private law. Nor does the 1993 Order make any exceptions as to religious goals. It applies to all foreign voluntary associations, and so these circumstances in themselves cannot be an obstacle to registration of the Society's representation under the 1993 Order. What is relevant is the Society's legal-organizational form from the standpoint of Georgian law. This is because the GCC, which was introduced on 25 November 1997, established new norms concerning the legal-organizational forms, registration, and activities of voluntary associations operating in Georgia, and transferred State control and supervision over certain types of them to the courts. This is evident from GCC 1511(1), 1510, 31(1) (see also GCC 34, 35 and 1520):
The relevant legal status of the Watch Tower Bible and Tract Society of Pennsylvania under current Georgian law can be clearly seen from the 11 June 1998 decision of the Isani-Samgori District Court to register its representation (case volume 3, pp. 76). It is a non-commercial corporation in accordance with United States law (As in Georgia, the United States has no special law regulating the creation of religious organizations). Furthermore, the Society's Charter shows it is composed of 300-500 members who have placed before them a common goal, and its existence does not depend on changes to the composition of its members (case volume 3, pp. 86). Therefore, at the time it registered its representation, the Society's legal status from the viewpoint of Georgian law corresponded to that of a union in accordance with GCC 1510 and 30:
Since a union is a variety of voluntary association, the Society's representation was subject to registration in accordance with the 1993 Order. This status is also important in determining where it should have registered its representation, because State control and supervision over voluntary associations with the legal-organizational form of unions was transferred entirely to the jurisdiction of the courts by the GCC of 25 November 1997. The GCC, as a law, has higher normative force than the 1993 Order, established new and special norms regarding various types of voluntary associations, and assigned State control and supervision over their activities differently than existed at the time of the 1993 Order. Therefore, by all criteria point 4 of the 1993 Order cannot apply to the Society as regards registration of its subdivision (representation) in the Ministry of Justice. These matters are no longer under its jurisdiction as evident from GCC 2(3) and 1506:
This is confirmed by judicial practice. The defendants have provided the court with documentation showing that the representations of such voluntary associations have been registered by the courts since the GCC came into force (see attachment 9, also case volume 2, pp. 144-148). As such, the appeal court's contrary opinion was based on its failure to apply the relevant rules of jurisdiction introduced by the GCC. In any event, the appeal court's decision to unilaterally revoke registration had no basis in law. Applying legal analogy under GCC 5(1), even if the appeal court felt it had information that the registering court had gone beyond its jurisdiction in registering the Society's representation, it should have at the very most notified the registering court in observance of GCPC 347 and 348 so it could take the necessary measures to correct the matter. Consequently, the appeal court had no grounds for revoking registration of the representation of the Watch Tower Bible and Tract Society of Pennsylvania in Georgia; all the more so on religious grounds. The appeal court's decision, if upheld, would implicate revoking registration of numerous other legally registered branches of foreign legal entities. e) Finally, the court misapplied Article 9 of the Georgian Constitution: In justifying revocation of the defendants' registration, the court cited the Georgian Orthodox Church's lack of registration and Article 9 of the Constitution:
The defendants have never questioned the Georgian Orthodox Church's role in Georgian history. Nor do they deny the right of Orthodox believers to create legal entities of their own to pursue religious goals. The defendants have even presented evidence of such legal entities to the court (case volume 2, pp. 144-148). However, to suggest that a Church recognized by the Supreme Law of the Georgia has no legal status is disingenuous. The Georgian Orthodox Church's legal right to operate as an independent entity in pursuit of the same goals sought by the defendants (religious gatherings, acquisition and construction of places of worship, importation of liturgical literature and humanitarian aid) is beyond any question as evident from the Constitution. To deny Jehovah's Witnesses their "complete freedom of . religion" by revoking their legal status on this basis is blatant discrimination. The appeal court's decision denies rights to a minority religious faith that are granted to a majority religion. B. CASSATION REQUEST On the basis of GCPC 393, 396(1e) and 411, the defendants are requesting that the appeal court's decision be annulled and replaced with a new decision, denying the plaintiff's claims:
The defendants maintain that the facts relevant for a proper decision in this case were established by the lower courts and there is no need for any additional review of the evidence. The appeal court's decision was based entirely on its misapplication and misinterpretation of the law. This is evident from the following: 1. Both the lower courts considered all relevant issues necessary for rendering a proper decision in the case. While the appeal court evaluated the facts differently from the lower court, it grossly misrepresented the proceedings in the lower court when it stated: "[T]he Judge did not evaluate the most important evidence, in particular . the charter and ruling that the plaintiff demanded be revoked . The decision under appeal says nothing about whether the registration and charter corresponds to current law" (case volume 3, pp. 148) Contrary to what the appeal court'said, the Isani-Samgori District court's decision of 29 February 2000 reveals that the judge reviewed the defendants' registration and chartered goals (case volume 2, pp. 211-212, 215-216): The court found: The Isani-Samgori District Court of Tbilisi registered the Union of Jehovah's Witnesses on April 17, 1998, and the representation of the Watch Tower Bible and Tract Society of Pennsylvania (USA) in Georgia on June 11, 1998 under registration numbers 7/9-5 and 7/10-1. The goals and objectives of the registered Union and representation: to further the moral development of all through cultural, educational, and other non-commercial activity, to further the progress and study of Christian religion and the Bible by means of the import, storage, and distribution of literature, as well as other printed materials in accordance with the law . . the plaintiff's claims are unfounded and his lawsuit cannot be granted for the following reasons: the right to request registration of a union in accordance with GCC 31 arises in those instances where the union's Charter meets the requirements of the law and the goals of the legal entity are not contrary to current law, moral standards, or the constitutional legal principles of Georgia. According to Article 26 of the Georgian Constitution each has the right to create a voluntary association and participate in it. According to Part 3 of this same article the creation and activity of such voluntary and political associations that have the goal of violation of the constitutional order of Georgia, infringing on the country's independence, violating its territorial integrity or which engages in the propaganda of war and violence, incites national, local, religious, or social enmity is not allowed . On the basis of the above, the court is governed by GCC 35, according to which control over the activities of unions are carried out by the court, and registration is annulled if the union changes to entrepreneurial activity or it becomes impossible for it to carry out its chartered goals. The court, governed by GCC 31 and 35, and on the basis of GCPC 243-244, rules to deny as unfounded the lawsuit of the Political Union of Georgian Citizens - The National Movement "Georgia Over All!" to revoke registration of the Union of Jehovah's Witnesses and the representation of the Watch Tower and Bible Tract Society of Pennsylvania (USA) in Georgia. Therefore, the claim that the lower court failed to consider all the relevant issues is patently false. The Isani-Samgori District Court properly established that the defendant organizations' registration and chartered goals were in accordance with the law. As such, the appeal court's contrary decision was based entirely on its misapplication and misinterpretation of the law. 2. Both lower courts established the absence of any illegal activity by the defendant organizations. In reviewing the lower court's decision, the appeal court did not dispute its finding that the plaintiff's allegations of illegal activity were unsubstantiated. The lower court based its decision on various evidence, including witness testimony, documentary evidence, decisions of courts and law enforcement agencies having legal force, and a court-appointed expert study that stated the following (case volume 2, pp. 183-186): We reply that the literature presented contains no "anti"-like calls whatsoever. It does not touch on the State, the nation, and questions of its integrity at all. It contains no aggression of any sort. This organization is one interpretation of Christian doctrine; it is based on its own distinctive understanding of the Bible which does not touch on either Georgian statehood or the Georgian nation. There are many interpretations of the Bible and they all have the right to exist. Freedom of conscience and belief is guaranteed by the Constitution and this guarantee is not formal but real. As we can see, some do not like democracy and they are nostalgic for dictatorship. The ban on these organizations was lifted with the fall of dictatorship in 1991. If any organization wants to restore this liquidation, it should first raise the question of changing the Constitution, excluding the provisions of freedom of conscience and belief and only then demand their ban . The principles of the Union of Jehovah's Witnesses differ from the principles of Orthodoxy, but they are not anti-Orthodox. Differences in interpretation of the Bible have always existed and always will. This is and will be the subject of dialogue, debates, and disputes, but debates and disputes should not turn into bans and insults. The appeal court evaluated the expert study differently than the lower court. It did so from a purely legal perspective under GCPC 167, finding it to lack legal force on entirely procedural grounds (case volume 3, pp. 149). To the extent that there were any procedural irregularities, however, they were harmless errors. It should be noted that the appeal court nowhere disputed the experts' identity, qualifications, or integrity, nor did it challenge their conclusions. In fact, the appeal court drew the same conclusion as the experts. It found the plaintiff's accusations to be essentially based on a difference in religious beliefs, and that revocation of registration on these grounds alone would be unacceptable (case volume 3, pp. 151): The appeal court acknowledges the right of each individual to freedom of speech, thought, conscience, religion, and beliefs, and thus it believes it inappropriate to discuss the beliefs of Jehovah's Witnesses . the appeal court considers it inexpedient to use the differing religious views of the defendant organizations as the basis for revoking registration, as that would be contrary to constitutional principles. Revoking registration on the basis of differing religious views would also be contrary to Article 9 of the European Convention. In its 26 September 1996 decision in Manoussakis & Others v. Greece, the European Court of Human Rights stated (case volume 1, pp. 95, 96): 47...The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. Therefore, in accordance with GCPC 393(3), the court's finding of procedural violations during the expert study cannot serve as a basis for annulling the Isani-Samgori District court's decision:
In view of the foregoing, the defendants submit that facts necessary for rendering a proper decision in the case were established by both lower courts, and there is no need for any additional review of evidence. The appeal court's decision to revoke registration was entirely due to misinterpretation and misapplication of the law. Consequently, in accordance with GCPC 391, 393, 396, and 411, WE REQUEST:
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