(Russian) Judge Y.I. Prokhorycheva Ruling Civil Case No. ___________ 30 May 2001 The
Judicial Chamber for Civil Disputes of the Presiding Judge L.B. Sherstnyakova, Judges B.M. Pendyurina and O.A. Ksenofontova, with the participation of Prosecutor T.I. Kondratyeva, and Advocates G.A. Krylova and A.Y. Leontyev,
having heard in an open court hearing, as presented by the rapporteur, Judge L.B. Sherstnyakova, the civil dispute concerning the protest in cassation of the acting prosecutor of the Northern Administrative Circuit of Moscow, S.G. Belikov, against the decision of the Golovinskiy Intermunicipal Court of the Northern Administrative Circuit of Moscow of 23 February 2001, which ruled to "deny the action of the Prosecutor of the Northern Administrative Circuit of Moscow seeking liquidation of the Religious Community of Jehovah's Witnesses in Moscow and the ban of its activities and to oblige the Prosecutor of the Northern Administrative Circuit of Moscow to pay the experts Dmitriy Alekseyevich Leontyev, Sergey Igorevich Ivanenko, Valeriy Pavlovich Belyanin, Marina Mihaylovna Gromyko, and Sergey Andreyevich Nebolsin for expenses connected with the expert study in the sum of 16,000 rubles each,"
Established:
That the Prosecutor of the Northern Administrative Circuit of Moscow filed an action for liquidation and ban of the activities of the Religious Community of Jehovah's Witnesses in Moscow, which was registered by the Moscow Justice Department on 30 December 1993. In support of his action, the prosecutor indicated that the religious community incites religious discord through the distribution in Moscow of the magazines The Watchtower and Awake!, letters, and other literature issued by said organization, and that the prescribed requirements in the literature, which are mandatory for its members, forcibly break up families, infringe on the individual and civil rights and freedoms, incline people to commit suicide or to refuse to render medical assistance for religious motives, and lure teenagers and underage children into the organization's activities. The prosecutor notes that since the primary form of activity, according to the community's charter, is the joint practice and dissemination of faith through the distribution of religious literature and printed materials, the organization's activities violate constitutional norms, current federal law, and its own statute as registered by the Moscow Justice Department (in that it inclines people to commit suicide). The [trial] court issued the decision indicated above. In his protest in cassation, Moscow NAC Prosecutor S.G. Belikov asks that the court's decision be annulled and the case sent for a new trial to the court of first instance on the grounds that the judgment was rendered without properly determining the legally relevant issues, that the court made errors in its application of substantive and procedural law, and that the court's conclusions were contrary to the evidence in the case. Having studied the case file, having heard the prosecutor, who supports the protest and deems the decision subject to reversal, and having heard the submissions of the representatives of the Religious Community of Jehovah's Witnesses - A.Y. Leontyev, acting on the basis of his [advocate's] order, Drew Patrick Holiner, acting on the basis of a power of attorney, and G.A. Krylova (order), who deem the decision proper and not subject to reversal (and the arguments of the protest in cassation unfounded), and having discussed the arguments of the protest in cassation, the Judicial Chamber finds that the court's decision must be annulled and the case sent for a new hearing in the court of first instance. In accordance with Article 61(2) of the Russian Civil Code "A legal entity may be liquidated by decision of the court in the event that it engages in activity that is prohibited by law, or in the event of other repeated or severe violations of the law or other acts of law, or in the event that the religious organization systematically engages in activity that is in violation of its chartered goals." As can be seen from the file, the prosecutor's action is related to the issue of illegal activity by the organization. The court's conclusion that there are no grounds to consider the organization's activity unlawful was primarily based upon an expert study; yet, as witness and member of the Expert Council M.I. Odintsov testified, study of the organization's activities was not within the jurisdiction of the expert study. As follows from his testimony, in compliance with the statute of the Expert Council, they did not study the activities of the organization of Jehovah's Witnesses, since the activities of the organization are not within their jurisdiction. He knew nothing of the organization's written directives and has no right to acquaint himself with those documents. As can be seen from the case file, neither expert S.I. Ivanenko nor Odintsov were able to explain to the court just what specific literature of the organization of Jehovah's Witnesses was used as the basis for the expert study. The above is also confirmed by the Statute of the Expert Council for Performing State Expert Religious Studies, which was ratified by Order of the Russian Ministry of Justice No. 140 of 8 October 1998. Therefore, in the opinion of the Judicial Chamber, the court's reference to the state expert religious study before the Ministry of Justice (which served as the basis for re-registration of the Administrative Center of Jehovah's Witnesses), as evidence which refutes the stated claims is hardly well-founded. The prosecutor's argument that certain types of activities of the organization of Jehovah's Witnesses are contrary to constitutional norms, federal law, and its own chartered provisions, was not completely studied and reviewed by the court, and therefore the court's findings of fact are not proven by the case file. As can be seen from the prosecutor's claim and the case file, the primary form of activity of the Religious Community of Jehovah's Witnesses in Moscow is the joint practice of faith and the distribution of religious literature and printed materials. The prosecutor's argument that the literature and printed materials distributed by the organization contain anti-constitutional directives and appeals was rejected by the court as unsupported by the evidence. At the same time the decision lacks a complete analysis of the literature and does not evaluate it from the standpoint of the law. The court's reference to permit No. 11-5002-5705/69, issued by the State Press Committee on 24 July 1997 for distribution of The Watchtower and Awake! magazines in Russia, does not refute the prosecutor's arguments on the merits of the dispute as related to the disputed type of activity of the organization. The argument that the unlawful and anti-constitutional activities of the organization are reflected in the distributed literature, which incites citizens to refuse service in the army and alternative service, was found by the court to be contrary to the facts. The court based this conclusion on the grounds that it found no instances where any members of the organization had refused to serve. This conclusion of the court relates to the actions of specific members of the organization, but does not refute the action's argument regarding the form of activity of the organization itself, is not based on an analysis of the above literature, and is contrary to evidence in the case. For example, in their answer to question No. 3 (page 16 of the expert study), the experts state that "the literature and documents of Jehovah's Witnesses contain appeals to refuse both ordinary military service and alternative forms." The court did not evaluate this fact from the standpoint of the law in its decision. In considering the part of the case as related to arguments that the community's activities do not correspond to federal law, the Constitution, and its charter in that its literature incites religious discord, the court came to the conclusion that the facts confirmed by witness testimony did not support the prosecutor's arguments. The decision cites differing opinions of the experts and states that the experts' opinions cannot serve as a basis for granting the prosecutor's claims, since they only reflect the experts' evaluation of the religious organization but are not supported by facts of incitement of religious discord, infringements on the individual and civil rights and freedoms. This conclusion of the court is unfounded. The court, in essence, excluded the experts' opinion as evidence, yet in accordance with the clarifications given by the [Russian Supreme Court] Presidium's Order "On Court Judgments," No. 11 of 21 December 1993, the court must fully evaluate an expert opinion in its decision. As can be seen from the court file, according to the copy of the expert opinion of F.G. Ovsienko, the religious organization's literature presented for expert study contains views and ideas that undermine respect for other religions, arouses feelings of hostility toward them and citizens that practice Catholicism, Orthodoxy, Protestantism, Buddhism, Islam, and other religions; these views and ideas arouse religious enmity and discord. At the same time the court analyzed the copy of the expert opinion of N.S. Gordienko, doctor of philosophical sciences, professor of the Religious Studies Department of the Herzen Russian State Pedagogical University. In his conclusions he made an opposite evaluation of the organization's activities. The court appointed a composite expert study. According to the conclusions of the composite expert conclusion of four experts, the texts of the literature of the religious community contain elements of incitement of religious discord, such as undermining respect and actively forming hostility toward other religions (especially Christianity); the literature's texts lack direct coercion to destroy the family, but direct psychological pressure is carried out and recommended to be carried out in practice, which is fraught with destruction of the family. Expert S.I Ivanenko compiled a separate opinion in which he set forth opposite conclusions. With such differing opinions of experts and other various information, the court should have appointed a repeat composite forensic study to eliminate the contradictions. The Judicial Chamber finds that the court's conclusion that acquainting children with the religious views of their parents is not contrary to their interests was made without taking into consideration the provisions of Article 31(1) of the Convention on the Rights of the Child, Article 5(2) of the Declaration of Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, and Article 3(5) of the Federal Freedom of Conscience and Religious Associations Act of 1 October 1997. This law contains a provision that prohibits the teaching of religion to underage children against their will and without the consent of their parents. The experts' opinion that certain orders of the organization create an intolerant and destructive atmosphere within the family for children and are fraught with infliction of serious psychological trauma on children, which agrees with the testimony of Professor Kondratyev, was practically ignored by the court without considering the possibility of conducting an additional or repeat expert study. As such, the Judicial Chamber finds that the court's conclusion, that no facts of illegal active luring of children into religious activity and that acquainting children with the religious activity of parents is not contrary to their interests, is based on an incomplete study of the legally relevant facts and is premature. The Judicial Chamber finds that the court did not fully study the action's argument concerning the organization's distribution of the special "No Blood" document, which each member of the organization is obligated to carry, including children, and that the content of the document excludes any possibility of rendering necessary medical assistance to individuals that are in a condition that is clearly dangerous for their life and health, which is directly contrary to Article 41(1) of the Russian Constitution. The court did not review these claims with consideration to the requirements of Article 6 of the Convention on the Rights of the Child, Article 17 of CIS Convention on Human Rights and Fundamental Freedoms, and Article 18(3) of the International Covenant on Civil and Political Rights. The court also did not give a specific evaluation of the composite expert study in the part regarding matters that a dogma is instilled in the consciousness of believers that under certain circumstances can turn out to be suicidal, and that inclining others to refuse to render medical assistance to individuals that are in a condition that is dangerous for their life or health occupies a significant role. In citing Articles 30 and 33 of the Russian Health Protection Law Fundamentals, the court did not take into consideration that it applies to citizens and their legal representatives, and the court should have more carefully studied the "No Blood" document, a medical directive in which a citizen orders that no blood transfusions should be administered to him under any conditions. The document states that the citizen empowers the individual or individuals indicated in the document (as can be seen from the form, the "witness") to see to it that his directions are carried out. The court did not evaluate this directive from the standpoint of the law and did not take into consideration that if a patient loses consciousness any "witness" nearby or indicated in the document cannot be a legal representative on the force of the document in accordance with the law. With such a violation of substantive and procedural law the court's decision cannot be found lawful and well founded, and in accordance with Article 306 of the Russian Civil Procedural Code must be annulled. In rehearing the case the court should carefully review the parties' arguments and discuss the matter of appointing a repeat expert study, establish the legally significant issues in the case, and resolve the dispute in accordance with the law.
Governed by Articles 304 and 306 of the Russian Civil Procedural Code, the Judicial Chamber
Rules:
That the decision of the Golovinskiy Intermunicipal (District) Court of the Northern Administrative Circuit of Moscow of 23 February 2001 be annulled and the case sent back to the same court for a new hearing by a new judge. Presiding Judge [signature]
Judges [signatures]
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