(Russian) To the Moscow City Court In the civil case
concerning the application of the prosecutor of the Northern
Administrative Circuit of Moscow of April 20, 1998, LIMITED APPEAL AGAINST THE RULING FOR SUSPENSION OF THE CASE By ruling of the Golovinskiy Intermunicipal Court of the city of Moscow of March 12, 1999, a composite expert study was appointed in the civil case concerning the application of the prosecutor of the Northern Administrative Circuit of the city of Moscow for the liquidation of the religious community of Jehovah's Witnesses in Moscow and banning its activity, and the case was suspended pending the completion of an expert study. We believe this ruling is without grounds and illegal for the following reasons. 1. A trial on the religious beliefs and the means for their expression violates the legally protected rights and interests of Jehovah's Witnesses. First, the Federal Law "On the Freedom of Conscience and on Religious Associations", in particular Article 14, violates Article 9 of the European Convention for the Protection of Human Rights and Basic Freedoms, as well as Article 28 of the Constitution of the Russian Federation, since it allows for a trial on religious beliefs, and not specific illegal acts of specific individuals. Even if it were to be assumed that this Law does not violate Article 9 of the Convention and Article 28 of the Constitution of the Russian Federation, then its application in this case should have been excluded, since this is a trial on the religious beliefs and the means for their expression. This is confirmed by the fact that the prosecutor's application and the subsequent supplement are knowingly unfounded and have no legal subject matter. They contain no legally significant facts that relate to the allegations to be proven in the civil case. The criminal case (which was handled by the prosecutor's office of the Northern Administrative Circuit of the city of Moscow) concerning the very same evidence on which the application was submitted, was closed four times on exonerating grounds. The prosecutor is attempting to retroactively apply the law, referring to alleged violations of the law that took place before the Federal Law "On the Freedom of Conscience and on Religious Associations" came into force. There were no warnings issued or negotiations held for correcting supposed violations of the law before the application was filed with the court. The prosecutor has based his accusations on the publications of Jehovah's Witnesses, and not on illegal actions of specific officers or members of the community that have been established in the procedure stipulated by law. Instead of testifying concerning specific violations by members of the community, witnesses for the prosecution primarily spoke critically about the teachings of Jehovah's Witnesses. The nature and content of the application demonstrates a blatant disregard for the Russian Constitution and the European Convention for the Protection of Human Rights and Basic Freedoms. Secondly, the subject of the court's investigation is excerpts from the religious literature and internal canonical documents of Jehovah's Witnesses that are not even published by the community. Thus, the court is asking secular experts to evaluate the religious beliefs of Jehovah's Witnesses and the means for expressing them in the context of a trial, which is a violation of the rights to freedom of thought, conscience, and religion, which are guaranteed by Articles 28 and 29 of the Russian Constitution and Article 9 of the European Convention for the Protection of Human Rights and Basic Freedoms. According to the September 26, 1996 decision of the European Court of Human Rights in Manoussakis v. Greece, "the right to freedom of religion excludes any freedom on the part of the State to act with the goal of determining the legitimacy of religious beliefs or the means for their public expression." Thirdly, the court repeatedly denied individuals (elders and believers of the religious community of Jehovah's Witnesses) participation in this case for the direct defense of their individual rights in Articles 6, 9, 10, 11, 13, 14, and 17 of the European Convention for the Protection of Human Rights and Basic Freedoms, as well as the corresponding freedoms provided for by the Russian Constitution. Thus, this trial is a violation of Article 1 of the European Convention for the Protection of Human Rights and Basic Freedoms, which obligates the Russian Federation to guarantee the rights and freedoms defined in Section I of the Convention, since it consists of a trial on religious beliefs, and not legally significant facts. It is noteworthy that on March 11, 1999, the European Parliament passed a resolution "On Respect for Human Rights in Russia", in which it called of the Russian government, as well as officials on the central and local levels to strictly apply international conventions and treaties on human rights, and to guarantee the freedom of religion and battle against all forms of intolerance against minorities, referred to the decision of the European Court of Human Rights (Manoussakis v. Greece, September 26, 1996), which states that the right to freedom of religion excludes any freedom on the part of the State to act with the goal of determining the legitimacy of religious beliefs or the means for their public expression. 2. There are no legal grounds for appointing an expert study. Firstly, the expert study in essence has been appointed to resolve points of law. The court appointed specialists - religious scholars, linguists, and a psychologist - to resolve the following questions:
The court, by simply listing the subsections of Article 14.2 of the Freedom of Conscience and Religious Associations Act in question no. 1, in essence placed before the experts matters of law, shifting the burden of establishing the legal truth in the case on individuals, who are not competent in the field of law. However, according to Article 74 of the RSFSR Civil Procedural Code, the court appoints an expert study for resolving matters that require special knowledge only in the field of science, art, technology, or craftsmanship, and not in matters of law. The presumption that judges know the law is adhered to in a civil trial. Therefore, an expert study cannot be appointed for purposes of resolving points of law. Official representatives of this denomination gave the necessary explanations to questions that arose in the field of theology (and not science, art, technology, or craftsmanship) during the trial. Witnesses who are religious scholars and psychiatrists gave testimony before the court, and other scientific studies were presented (regarding the teachings and literature of Jehovah's Witnesses, the psychological state of believers and so forth), which were rejected by the court. In this way, the matters that require special knowledge were sufficiently completely clarified for the court, which had the opportunity in connection with Article 78 of the RSFSR Civil Procedural Code to give an objective and comprehensive evaluation of the expert conclusions, taking into consideration all the circumstances in the case as a whole. In connection with this, representatives for the defendant consistently objected to the appointment of an expert study as a matter of principle, and on three occasions presented written objections to the court. Secondly, the Bible and the doctrinal literature of Jehovah's Witnesses do not contain information about facts in the definition of civil procedural law. The experts appointed by the court cannot answer the question as to whether or not literature contains signs of "inciting religious discord", "coercion" to destroy the family, and "infringements" of the rights of citizens, since "incitement", "coercion", and "infringement" are specific actions that must be made by individuals (or legal entities), and not the Bible or literature as such. Furthermore, during her opening statement the representative of the Justice Department of the City of Moscow did not support the prosecutor's allegation of incitement of religious discord. Thus, an expert study of religious literature is not required to establish facts that have legal significance for a proper decision in the case in accordance with Article 49 of the RSFSR Civil Procedural Code. In order to do this it is necessary to establish specific evidence of such violations, if such took place, and give them a legal evaluation, which is not in the jurisdiction of the experts. In the defendant's opinion, the expert study was appointed because during the trial no evidence was uncovered that could serve as a basis for liquidating the organization. No "incitement", "coercion", or "infringement" was found during consideration of the literature or questioning of specific witnesses. The prosecutor's arguments were not supported during the trial, and the court was faced with making a decision of the merits of the case on the basis of the evidence reviewed, and to give a legal evaluation. Therefore, the appointment of an expert study in essence was a way to suspend the hearing of the case and avoid rendering a decision in favor of the religious community. Thirdly, the grounds given in the court's ruling for holding an expert study are of an artificial nature. The fact that the judge had the right to appoint and expert study and experts for conducting it during the preparatory phase of the trial in accordance with Article 142.1.7 of the RSFSR Civil Procedural Code bears witness to this. Thus, if the court was troubled by the existence of two mutually exclusive expert opinions, which were presented by the prosecutor's office from the start of the case, such an expert study could have been appointed in the pre-trial phase or when the trial was adjourned in September 1998. Further, as shown above, the court did not accept for its consideration and did not evaluate authoritative scientific studies and other evidence related to the subject of this case. In particular this relates to a study of the literature of Jehovah's Witnesses prepared by a group of authoritative specialists by request of the Russian State Duma Committee for Affairs of Public Associations and Religious Organizations; academic analyses of the studies of religious scholars presented by the prosecutor for inclusion in the case file; and the decision of the European Court of Human Rights in Hoffmann v. Austria. This is a violation of the equality of the parties, which is established by Article 14 of the RSFSR Civil Procedural Code, as well as the right to a fair trial, guaranteed by Article 6.1 of the European Convention for Protection of Human Rights and Basic Freedoms. The representatives for the defendant also notified the court in writing that the religious community is not the publisher of the publications of Jehovah's Witnesses that were sent for expert evaluation. These publications are not prohibited in Russia. The distribution of these publications has been permitted by the State Press Committee of the Russian Federation. 3. The expert study was appointed in violation of procedural norms. Firstly, the court violated the principle of objectivity in appointing the expert panel. Without discussing the possibility of conducting the expert study at an appropriate academic institution (for example, the religious studies department of Moscow State University or another institution shown in an official handbook) in accordance with Article 75 of the RSFSR Civil Procedural Code, the court appointed other specialists. At the same time, the court violated the requirements of Article 14 of the RSFSR Civil Procedural Code concerning the equality of the parties, appointing as experts three of the six offered by the prosecutor and two of the six offered by representatives for the defendant. The representatives for the defendant objected against the experts offered by the prosecutor since their selection was made by the [opposing] party based on an position to the issues under consideration that is known in advance. Secondly, the court, without giving appropriate reasons, rejected the questions presented by the defendant, in spite of the fact that, in contrast to the prosecutor's questions, were directed at the essence of the case, from an scientific viewpoint, were not leading questions, and had a definite and specific nature. The court's claim that the questions of the defendant were insufficiently defined and specific is baseless. At the very least, the questions of the defendant are of a more definite and specific nature than those given by the court (for example, an incomprehensible question as to whether the texts of the literature and documents of Jehovah's Witnesses subject to study are an expression that is usually used in religion). Since the court rejected the defendant's suggestion to conduct a comparison of the literature of Jehovah's Witnesses with similar literature of other denominations, in spite of the fact that during the trial quotes were brought forth from Orthodox publications of a similar or even more categorical nature in comparison with those that the prosecutor brought forth from the publications of Jehovah's Witnesses, restricting the subject of the expert study to excerpts from only the publications of Jehovah's Witnesses together with improperly worded questions is religious discrimination, which is a violation of Article 14 of the European Conventions for Protection of Human Rights and Basic Freedoms. Thirdly, the questions placed by the court before the experts are of an improper nature and have an illegal basis. The first question is a leading question, whose wording presupposes the answer. The court asks whether there are signs of incitement to religious discord in the literature, and not calls (expressions) directed toward such. Further, the court, without any legal basis for doing so, in the same question interprets "incitement to religious discord" as undermining respect for, as well as hostility toward, other religions. Even though this is in direct contradiction of the provisions of Article 20 of the International Covenant on Civil and Political Rights (which by means of Article 15.4 of the Russian Constitution is an integral part of its legal system), which states that incitement of religious hatred (enmity) is such an expression that consists of incitement to discrimination, enmity, or violence, that is to specific illegal acts against believers of other religions. Furthermore, any attitude, including a critical one, to all religions, a part of a religion, or to a particular religion is a matter of private life and an composite part of the freedom to opinion, guaranteed by Article 29 of the Russian Constitution and Article 10 of the European Convention for the Protection of Human Rights and Basic Freedoms. For example, atheists may experience disrespect or a feeling of hostility toward religion as such. Believers of on denomination may have a critical attitude toward the dogma and actions of another denomination, especially if there are grounds for this (inquisition, Holocaust, wars, immoral behavior). Theological disputes are an integral feature of interdenominational relations and are related to spiritual, and not secular life. It should also be noted that Article 3.3 of the Freedom of Conscience and Religious Associations Act prohibits establishment of advantages, restrictions, or other forms of discrimination depending on one's attitude toward religion. Such wording of the question is a violation of the requirements of Article 10 of the RSFSR Civil Procedural Code concerning the resolution of matters on the basis of existing law, as well as the principle of the rule of law that is enshrined in Articles 1.2 and 4 of the Russian Constitution, the preamble of the European Convention for the Protection of Human Rights and Basic Freedoms, and furthermore, Article 3.3 of the Federal Law "On the Freedom of Conscience and on Religious Associations". Appointing an expert study to determine whether the literature of Jehovah's Witnesses contains acceptable religious doctrine and an acceptable evaluation of other religions is a violation of the right to the freedom to express one's opinion, which is guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Basic Freedoms and Article 29 of the Russian Constitution. 4. Suspension of the case violates the legally protected interests and rights of Jehovah's Witnesses. Firstly, for the period of a month the court conducted a trial of what was in essence a theological debate, and has now raised the new matter of appointing an expert study for reviewing doctrinal literature. In doing so the principle of the adversarial process contained in Article 14 of the RSFSR Civil Procedural Code is violated. If the prosecutor is unable to prove his knowingly illegitimate claims, the defendant has the right to receive a court decision in his favor with compensation for court expenses in a reasonable period of time. Secondly, the length of the trial violates not only the time limits set by Article 99 of the RSFSR Civil Procedural Code, but its length also exceeds all reasonable criteria. In accordance with Article 99 of the RSFSR Civil Procedural Code, civil cases should be heard no later that one month from the day pre-trial preparation has been completed. However, this case has been filed with the court since April of 1998. In spite of the repeated objections by representatives of the defendant, the court, after a lengthy hearing of the prosecutor's application - which knowingly lacks any [legitimate] subject matter and is an abuse of rights forbidden by Article 10 of the Russian Civil Code, suspended the case for an indefinite period in connection with the appointed expert study. In practice, such an expert study can take a period lasting more than a year and a half. After completing the experts study, in accordance with the requirements of Article 146 of the RSFSR Civil Procedural Code concerning the immediate and uninterrupted nature of a trial, and in consideration of Article 218 of the RSFSR Civil Procedural Code, a new hearing after its resumption starts again from the beginning. At the same time, taking into consideration the specific circumstances of this case, its suspension has led to significant and numerous violations of the rights of the religious community in Moscow and Jehovah's Witnesses in Russia as a whole. Currently the religious activity (meetings, preaching) of Jehovah's Witnesses in Moscow and even in other regions of the Russian Federation are being subject to restrictions with reference to this lengthy trial. For example, the Moscow Land Committee suspended registration of the legal land documents of the religious organization of Jehovah's Witnesses for plots of land where Jehovah's Witnesses' buildings for worship are located in Moscow, which is obstructing remodeling work and their effective use for carrying out the chartered activity of the religious association. Rental contracts for premises for religious meetings have been broken off with ÀÎÎÒ "TsNIIEPgrazhdanstroy" in Moscow, and with UK "Zvyozdnyy" in the Lyubertsy District of Moscow Region. Jehovah's Witnesses have been denied the opportunity to hold religious meetings in the city of Gusinoozyorsk in Buryatiya. A massive campaign is being carried out in the press and on television, during which Jehovah's Witnesses are depicted as lawbreakers, the activity of which the prosecutor's office is demanding to ban (for example, on March 3, 1999, the ITAR-TASS press service reported that the Patriarch Alexis II expressed his support for such trials that "determine whether sects are beneficial for society or sow discord in the souls of Russian citizens"). Thus, suspension of the case after a month of hearing the case on its merits (February 9-March 12, 1999) is a violation of not only Article 99 of the RSFSR Civil Procedural Code, but also Article 6.1 of the European Convention for the Protection of Human Rights and Basic Freedoms concerning the right to a trial in a reasonable period of time. Thirdly, the decision to hold yet another expert study for determining whether or not to ban religious meetings for studying unacceptable religious doctrine, taking into consideration the above-mentioned obstructions of holding religious meetings, is a violation of the right to freedom of assembly and association, which is guaranteed by Article 11 of the European Convention for the Protection of Human Rights and Basic Freedoms Fourthly, the community as a whole and believers as individuals lack effective means of legal defense from the prosecutor's abuses. This process undermines the reputation of the religious community, destabilizes its normal registered activity, requires great expense for defense against claims that are knowingly not based in law. However, state governmental and prosecutorial agencies claim that the have no legal grounds for interfering in the prosecutor's actions and that the case is being heard on its merits by the Golovinskiy Intermunicipal Court. The Golovinskiy Intermunicipal Court denied the defendant's demand that the prosecutor's application be dismissed as not subject to consideration by the courts in view of that fact that it was obviously without grounds. The court also refused to accept for consideration a countersuit against the prosecutor for defense of the community's reputation. Thus, there is a violation of Article 13 of the European Conventions for the Protection of Human Rights and Basic Freedoms, which states that everyone has access to effective means of legal defense before state agencies even if the violation was committed by individuals acting in their official capacity. Fifthly, the prosecution of the religious community of Jehovah's Witnesses aimed at the destruction or unfounded restriction of rights and freedoms guaranteed by the Convention. The prosecution of Jehovah's Witnesses, which is being conducted at the instigation of the Committee for Rescuing Youth - an anti-cult public association whose goal is the termination of the activity of Jehovah's Witnesses in Russia, and whose participation in the case was actively sought by the prosecutor in contrary to the law (Articles 21, 42 of the RSFSR Civil Procedural Code), is an abuse of the judicial process in violation of the requirements of Article 17 of the European Convention for the Protection of Human Rights and Basic Freedoms. According to this norm neither the State nor any individual or group of individuals has the right to engage in any activity aimed at the destruction of any of the rights and freedoms contained it the Convention or their restriction to a greater degree than provided for by the Convention. On the basis of that which has been set forth, and governed by Articles 217, 306-308 of the RSFSR Civil Procedural Code, Articles 2, 15, 17, 18, 19, 28, 29, 30, 31, 55 of the Russian Constitution, and Articles 1, 6, 9, 10, 11, 13, 14, 17 of the European Convention for Protection of Human Rights and Basic Freedoms, I REQUEST: THAT the March 12, 1999 ruling of the Golovinskiy Intermunicipal Court of Moscow for suspension of the civil case concerning the application of the prosecutor of the Northern Administrative Circuit of Moscow for liquidation of the Religious Community of Jehovah's Witnesses in Moscow and the ban of its activity be annulled. Attachments:
Advocate A. Y. Leontyev Advocate G. A. Krylova March 19, 1999
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